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58th  Congress,  [  SENATE.  J  Document 

2dSessio7i.       \  I     No.  317. 


REPORT 


OF 


ROBERT  C.  MORRIS, 

AGENT  OF  THE  UNITED   STATES, 

BEFORE 

THE  UNITED  STATES  AND  VENEZUELAN 
CLAIMS  COMMISSION, 

Organized  under  the  Protocol  of  February  17,  1903, 

between  the  United  States  of  America  and 

the  Republic  of  Venezuela. 


r 


K 


WASHINGTON: 

GOVERNMENT  PRINTING  OFFICE. 
1904. 


\ 


i^  TABLE  OF  00]N'TE:N'TS. 


Paae. 

Eeport  of  the  agent  of  the  United  States 5 

Protocol  in  the  EngUsh  and  Spanish  languages 33 

Rules  of  the  Commission  in  the  English  and  Spanish  languages '  37 

Preliminary  address  of  the  agent  of  the  United  States 41 

Preliminary  address  of  the  agent  of  Venezuela 42 

Pleadings  and  decisions  in  the  following  claims: 

Ford  Dix 45 

Catalina  V.  Paez  and  Jose  Paez 59 

Corinne  B.  De  Garmendia 62 

Coro  and  La  Vela  Railway  Improvement  Company 68 

Ames  Foundries [  71 

Emerich  Heny "..]]"  77 

Ernst  C.  Bliss,  William  B.  Boulton,  John  Schimmell,  and  Frederic  A. 

Dallett,  partners  doing  business  as  Boulton,  Bliss  &  Dallett 101 

Leonard  B.  Smith IO9 

A.  T.  Stubbs [W""]"]]]]]]  122 

J.  S.  Emery  &  Co 124 

The  American  and  Electric  Manufacturing  Company  (No.  1  j 128 

Isaac  J.  Lasry I33 

Elias  Assad  Flutie '  137 

Emelia  Alsous  Flutie 140 

George  Freeman  Underbill  and  Jennie  Laura  Underbill [[""][[[[  153 

The  administratrix  and  heirs  at  law  of  Giovanni  Turini,  deceased,  The 

Gorham  Manufacturing  Company,  and  Joseph  Carabelli 168 

Margaret  Turini  as  administratrix  of  Giovanni  Turini 184 

Henry  R.  Kuhnhardt,  George  W.  Kulhke,  and  Franz  Meuller,  partners  as 

Kuhnhardt  &Co 188 

The  Orinoco  Steamship  Company 205 

Frances  Irene  Roberts,  administratrix  of  the  estate  and  sole  heir  at  law 

^  of  William  Quirk,  deceased 281 

Susanna  Maud  Jarvis  and  Rebecca  Josephine  Jarvis !  291 

Henry  Woodruff 397 

William  V.  Spader  and  others,  heirs  and  legatees  of  Admiral  Louis  Brioii.  324 

Charles  W.  Torrey 327 

George  E.  Gage 332 

William  B.  Matchett "!!!.!.!!..]!!]]"  339 

Lorenzo  Mercado  (No.  1) .".."]\\\[][[  343 

Felipe  Scandella ] 347 

William  H.  Phelps I .\"".\.[ ... .]]"][[  352 

Joseph  Anderson,  jr [[  354 

La  Guayra  Cable  Company 359 

Thomson-Houston  International  Electric  Company [  369 

Henry  C.  BuUis 372 

J.  B.  F.  P.  Monnot  (No.  1) '.\\""[""]"[""[  376 

J.  B.  Bance,  receiver  in  bankruptcy  of  Ernesto  Capriles,  for  the  benefit  of 
Weeks,  Potter  &  Co.,  Seabury  &  Johnson,  and  Johnson  &  Johnson, 

American  citizens,  claimants 3S I 

George  W.  Upton  (No.  1 ) 384 

Mauricio  Berrizbetia 390 

Virgilio  del  Genovese 393 

La  Guayra  Electric  Light  and  Power  Company 401 

Henry  T.  Duke ^  410 

Sofia  Ida  Wiskow  de  Rudloff  and  Frederick' W."  Rudloff  . .' .' . ." .... '. '. . . . ! !  415 

27«)9I0 


4  TABLE    OF    CONTENTS. 

Pleadingg  and  decisions  in  the  following  claims — Continued.  Page. 

Geoiije  Crowther 440 

Geoii'e  W.  Upton  (No.  2)  444 

Pedro  Miguel  Pares 448 

George  TurnhuU 451 

Manoa  Company,  Limited,  The 451 

Orinoco  Company,  Limited,  The 451 

William  H.  Mundy 508 

The  American  Electric  and  Manufacturing  Company  (No.  2)  511 

Lorenzo  Mercado  (No.  2) 520 

The  heirs  of  Charles  Raymond 522 

W.  H.  Yolkmar 535 

Flannagan,  Bradley,  Clark  &  Co 540 

Elias  A.  de  Lima,  Elias  S.  A.  de  Lima,  Edward  de  Lima,  partners  as  D. 

A.  de  Lima  &  Co :  543 

J.  B.  F.  P.  Monnot  (No.  2) 545 


UNITED  STATES  AND  VENEZUELAN  CLAIMS 

COMMISSION. 


REPORT  OF  ROBERT  C.   MORRIS,  AGENT  OF  TJNITED  STATES. 

The  Honorable  John  Hay, 

Secretary  of  State  of  the  United  States,  Washmgton,  D.  C. 

Sir:  The  undersigned  has  the  honor  to  submit  the  following  report 
as  agent  of  the  United  States  before  the  United  States  and  Venezuelan 
Claims  Commission,  organized  under  the  protocol  of  an  agreement 
between  the  Secretary  of  State  of  the  United  States  of  America  and 
the  plenipotentiary  of  the  Republic  of  Venezuela,  signed  at  Washing- 
ton, Februar}^  17,^1903: 

B}^  the  protocol  it  was  provided  that  the  Commission  should  con- 
sist of  two  members,  one  of  whom  should  be  appointed  by  the  Presi- 
dent of  the  United  States,  and  the  other  by  the  President  of  Venezuela. 
It  was  also  provided  that  an  umpire  should  be  named  by  the  Queen  of 
the  Netherlands. 

Hon.  William  E.  Bainbridge  was  appointed  as  the  Commissioner  on 
the  part  of  the  United  States,  and,  after  having  duly  qualified,  served 
until  the  conclusion  of  the  work  of  the  Commission. 

Hon.  Jose  de  Jesus  Paul  was  appointed  as  Commissioner  on  the 
part  of  Venezuela,  and  duly  qualified  as  such.  Mr.  Paul  served  as 
Commissioner  on  the  part  of  Venezuela  until  it  became  necessar}^  for 
him  to  appear  before  the  tribunal  of  The  Hague  as  a  representative 
of  Venezuela  on  the  question  of  preferential  treatment  of  the  claims 
of  certain  nations,  and  also  to  proceed  to  Paris  in  fulfillment  of  his 
duties  as  Commissioner  on  the  Franco- Venezuelan  Mixed  Commission. 
He  resigned  as  Commissioner  on  the  16th  of  October,  1903. 

Hon.  Carlos  F.  Grisanti  was  appointed  as  Commissioner  on  the 
part  of  Venezuela,  in  the  place  of  Mr.  Paul,  and,  after  having  duly 
qualified  as  Commissioner  on  October  2-1,  1903,  served  until  the  con- 
clusion of  the  work  of  the  Commission. 

Hon.  Charles  Augustinus  Henri  Barge  was  named  by  the  Queen  of 
the  Netherlands  as  the  umpire  and,  after  having  dul}^  qualified,  served 
until  the  termination  of  the  work. 

The  undersigned  was  appointed  as  the  agent  of  the  United  States 
to  present  and  support  claims  submitted  b}^  his  Government  on  behalf 
of  citizens  of  the  United  States,  pursuant  to  the  provisions  of  the 
protocol. 

W.  T.  Sherman  Doyle,  esq.,  was  designated  by  the  Department  of 
State  to  accompany  me  to  Caracas  and  assist  me  in  the  prosecution 
of  the  claims.  Miss  Margaret  M.  Hanna,  of  the  Department  of  State, 
was  assigned  by  the  Department  to  accompany  me  to  Caracas  and 
assist  in  the  work  on  the  claims. 


C  REPORT  OF  ROBERT  C.  MORRIS. 

Hon.  F.  ArroYO-Parejo,  the  attorney-general  of  Venezuela,  was 
appointed  as  tlio  aoont  of  Venezuela,  pursuant  to  the  terms  of  the 
l)n)t(H'ol. 

Kudolf  Dolo-e,  esq.,  was  duly  appointed  as  secretary  on  the  part  of 
the  rniteil  States  and  continued  to  act  as  such  until  the  conclusion  of 
the  C\)niinission''s  labors. 

.1.  Padri)n-Uztariz,  esq.,  was  duly  appointed  secretary  on  the  part 
of  Vonozuola.  Mr.  Padron  continued  to  serve  in  this  capacity  until 
I  lie  departure  of  Mr.  Paul,  whom  he  accompanied  to  Europe. 

P^duardo  Calcaiio  Sanavria,  esq.,  Avas  duly  appointed  as  the  secretary 
on  the  ])art  of  Venezuela  in  place  of  Mr.  Padron  on  October  24,  1903, 
and  contiiuied  to  act  until  the  conclusion  of  the  work  of  the  Commission. 

The  Conunission  first  met  and  organized  at  the  "Casa  Amarilla," 
Caracas,  W-nozuela,  on  the  1st  day  of  June,  1903,  each  of  the  Com- 
missioners and  the  umpire  making  and  subscribing  the  solemn  oath 
provided  by  article  1  of  the  protocol.  This  oath  w^as  administered  by 
Hon.  J.  F.  Castillo,  judge  of  the  court  of  the  department  libertador 
in  the  Federal  District,  in  the  following  form: 

We,  the  undersigned  umpire  and  Commissioners,  appointed  on  the  Commission 
provided  for  in  the  protocol  of  an  agreement  signed  at  Washington,  February  17, 
1903,  between  the  United  States  of  America  and  tlie  Republic  of  Venezuela,  do 
severally  and  solemnly  swear  that  we  will  carefully  examine  and  impartially  decide 
according  to  justice  and  the  provisions  of  said  convention  all  claims  submitted  to  us 
in  conformity  with  the  terms  of  said  convention. 

On  Tuesday,  June  9,  the  Commission  adopted  rules  for  the  proceed- 
ings before  it,  providing  for  the  presentation,  prosecution,  and  defense 
of  claims,  a  copy  of  which  rules  is  hereto  annexed. 

At  the  time  I  went  to  Caracas  twenty-eight  claims  had  been  sub- 
mitted to  me  by  the  Department  of  State  for  presentation  to  the  Com- 
mission. Thirty-seven  claims  were  on  file  in  the  Department,  but  nine 
of  them  were  lacking  in  evidence  and  were  for  the  time  laid  aside. 
The  claimants  in  these  matters  were  communicated  with  and  a  few  of 
them  finall}^  produced  sufficient  evidence  to  warrant  the  presentation 
of  their  claims.  These  twenty-eight  claims  were  arranged  in  groups 
according  to  the  principles  involved,  and  were  so  presented  in  order 
that  the  labors  of  the  Commission  might  be  simplified.  Subsequently 
twentj-seven  additional  claims,  including  some  of  the  nine  claims  above 
mentioned,  were  presented  by  me  to  the  Commission  in  the  order  in 
which  the}'  were  received.  Thus  within  the  time  limited  by  the  pro- 
tocol fift3-five  claims  were  presented. 

In  support  of  these  claims,  sixty-four  separate  pleadings  were  filed 
with  the  Commission  by  me  as  agent  of  the  United  States  under  rule  4 
of  the  rules  of  the  Commission. 

In  presenting  a  claim  I  always  made  a  verbal  statement  of  the  facts, 
discussing  and  arguing  the  principles  involved,  and  submitted  a  written 
brief,  if  the  circumstances  required. 

When  the  pleadings  on  behalf  of  Venezuela  were  filed  with  the 
Commission  they  were  in  the  Spanish  language  and  had  to  be  translated 
into  the  English  language  and  typewritten.  Nearly  all  of  this  work 
was  done  by  Mr.  Doyle  and  Miss  Hanna,  who  were  proficient,  in  the 
Spanish  language  and  rendered  services  of  the  greatest  possible  value. 
In  addition,  much  of  the  evidence  presented  had  to  be  translated  by 
them  from  Spanish  documents  and  typewritten.  The  memorials,  evi- 
dence, and  pleadings  presented  to  the  Commission  on  behalf  of  the 


REPOET  OF  EOBEET  C.  MOEEIS.  ,-  7 

United  States  were  in  sextuple,  either  printed  or  typewritten,  one 
copy  being  given  to  each  of  the  Commissioners,  one  to  the  umpire, 
one  to  the  agent  of  Venezuela,  one  copy  was  retained  by  me  as  agent 
of  the  United  States,  and  the  sixth  copy  was  forwarded  to  Washington 
for  the  files  of  the  Department  of  State. 

After  the  conclusion  of  my  work  as  the  agent  of  the  United  States, 
and  my  return,  it  was  deemed  advisable  to  have  a  representative  of 
the  United  States  at  Caracas,  to  appear  before  the  Commission,  if 
necessary,  in  behalf  of  the  Orinoco  Steamship  Compan}",  one  of  the 
claimants,  and  Mr.  Doyle  was  appointed  assistant  agent  of  the  United 
States  for  this  purpose  on  October  30.  This  case  had  been  fulh'  sub- 
mitted during  the  month  of  June,  as  hereinafter  appears,  but  it  was 
thought  probable  that  it  might  have  to  be  reopened.  It  did  not  become 
necessary  to  reopen  the  case  and  Mr.  Doyle  returned  to  the  United 
States  on  December  7. 

The  following  schedule  shows  a  summary  of  the  procedure  in  rela- 
tion to  each  of  the  claims  presented,  with  reference  to  the  official  copy 
of  minutes  of  the  Commission  on  file  in  the  Department  of  State.  A 
list  of  the  documents  filed  with  the  Commission  in  each  claim  is  also 
set  forth. 

No.  1. 

Claim  of  Ford  Dix. 

summary  of  proceedings. 

Amount  claimed,  §16,381.15;  interest,  $1,474.30. 
Claim  filed  June  9  (Min,,  p.  15).      Oral  presentation.      Brief  in 
support. 

Filed  supplemental  evidence  June  16,  nunc  pro  tunc  (Min.,  p.  21). 

Answer  by  Venezuela  June  26  (Min.,  p.  31). 

Replication  filed  July  1  (Min.,  p.  37). 

Award  for  §11,837.53  in  United  States  gold  July  7  (Min.,  p.  45). 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCmvIENTS. 

Memorial;  Brief;  Supplemental  documents;  Answer;  Replication; 
Decision  and  award  in  English;  Decision  and  award  in  Spanish;  Opin- 
ion in  English;  Opinion  in  Spanish. 

No.  2. 

Claim  of  Catalina  V.  Paez  and  Jos6  Paez. 

SUMMARY   OF    PROCEEDINGS. 

Amount  claimed,  §2,400;  interest,  $392.15. 

Claim  filed  June  9  (Min.,  p.  15).  Oral  presentation.  Brief  in 
support. 

Admitted  b}'  agent  of  Venezuela,  except  interest  to  be  calculated, 
June  19. 

Award  for  $2,550  in  United  States  gold  July  1  (Min.,  p.  35). 

Opinion  by  Paul,  Commissioner. 


8  REPORT   OF   ROBERT    C.  MORRIS. 

LIST  OF  DOCUMENTS. 

Memorial;  Brief;  Decision  and  award  in  English;  Decision  and 
award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

/  No.  3. 

Claim  of  Corinne  B.  de  Garmendia. 

summary  of  proceedings. 

Amount  claimed,  $79,167;  interest,  $32,127.63. 
Claim   tiled  June   9   (Min.,  p.  15).     Oral   presentation.     Brief  in 
support. 

Filed  supplemental  evidence  June  16,  nunc  pro  tunc  (Min.,  p.  21). 
Answer  b}^  Venezuela  June  26  (Min.,  p.  31). 
Award  for  $29,363.61:  in  United  States  gold  July  3  (Min.,  p.  41). 
Opinion  by  Bainbridge,  Commissioner. 

list   OF    DOCUMENTS. 

Memorial;  Brief;  Supplementary  documents;  Deci^n  and  award 
in  English;  Decision  and  award  in  Spanish;  Opinion  in  English; 
Opinion  in  Spanish;  Answer. 

No.  4. 

Claim  of  Coro  and  La  Vela  Railway  Improvement   Company. 

summary  of  proceedings. 

Amount  claimed,  $54,000;  interest,  $8,598.80. 

Claim  filed  June  9  (Min.,  p.  15).  Oral  presentation.  Brief  in 
support. 

Admitted  by  agent  of  Venezuela  June  19. 

Award  for  $61,104.70  inUnited  States  gold,  July  1  (Min.,  p.  35). 

Opinion  by  Paul,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Decision  and  award  in  English;  Decision  and 
award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  5. 

Claim  of  Ames  Foundries. 

summary  of  proceedings. 

Amount  claimed,  $1,100;  interest,  $74.01. 

Claim  tiled  June  9  (Min.,  p.  15).  Oral  presentation.  Brief  in 
support. 

On  June  23  the  agent  of  Venezuela  announced  that  his  Government 
was  desirous  of  entering  into  negotiations  for  the  settlement  of  this 
claim.  The  Commission  thereupon  decided  that  pending  negotiations 
for  such  settlement  no  prejudice  under  the  rules  should  accrue  to  the 
Government  of  Venezuela  until  the  acceptance  or  rejection  of  the 


REPORT  OF  ROBERT  C.  MORRIS.  V 

proposition  of  the  Venezuelan  Government  by  or  through  the  Govern- 
ment of  the  United  States  (Min,,  p.  22). 

Proposition  received  from  Venezuelan  Government  to  carr}^  out 
contract,  and  transmitted  to  Department  of  State  for  instructions 
June  27. 

Reply  of  Ames  Foundries  July  27,  and  presented  to  the  agent  of 
Venezuela  at  session  of  Commission  July  28  (Min.,  p.  73). 

Answer  by  Venezuelan  Government  August  18,  and  transmitted  to 
Department  of  State  Augu^  22. 

Acceptance  or  Ames  Foundries  received  by  Commission  September 
29  (Min.,  p.  133)  and  referred  to  agent  of  Venezuela  with  request  that 
he  notify  his  Government  and  obtain  proofs  of  compliance  with  the 
stipulations  of  the  new  agreement  so  that  they  might  be  embodied  in 
the  files  of  the  Commission  and  the  claim  be  formally  retired  (Min., 
p.  123).  The  agent  of  Venezuela  presented  copies  of  the  orders  of 
pa^niient  issued  by  the  minister  of  the  treasury  and  the  Bank  of  Ven- 
ezuela in  settlement  of  this  claim  November  4.  Commission  finally 
disposed  of  this  claim  b}^  dismissing  it  without  prejudice  in  view  of 
the  settlement  arranged  for  December  9. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Correspondence  covering  proposition  and  accept- 
ance; Copies  of  orders  of  payment  issued  by  minister  of  treasury  and 
bank  in  settlement  of  claim;  Decision  in  English;  Decision  in  Spanish. 

No.  6. 
Claim  of  Emerich  Heny. 

summary  of  proceedings. 

Amount  claimed,  $29,925.11;  interest,  $8,789.19. 

Claim  filed  June  12  (Min.,  p.  17).  Oral  presentation.  Brief  in 
support. 

Extension  of  five  days'  time  from  Jul}'  1  for  answer  by  Venezuela 
(Min.,  p.  35). 

Answer  filed  July  6  (Min.,  p.  1:5). 

Replication  filed  July  13  (Min.,  p.  53). 

Rejoinder  filed  July  17  (Min.,  p.  57). 

Commissioners  disagreed  in  written  opinions,  and  claim  referred  to 
umpire  July  28  (Min.,  p.  69). 

Award  by  the  umpire  for  $23,954.25  in  United  States  gold,  August 
11  (Min.,  p.  91). 

list   OF   DOCUMENTS. 

Memorial;  Brief;  Answei';  Ro])lication;  Original  contract  between 
Heny  and  Bcnitz  heirs  (returned  to  claimant);  Rejoinder;  Copy  of 
Remstedt  contract;  Copy  of  Ortega  Martinez  contract;  Opinion  by 
Bainl)ridgc,  Commissioner,  in  P^nglish;  Opinion  by  Bainbridge,  Com- 
missioner, in  Spanish;  Opinion  by  Doctor  Paul,  Connnissioner,  in 
English;  Opinion  l)y  Dr.  Paul,  Connui.ssioner,  in  Spanish;  Decision 
and  award  by  umpire  in  Spanish;  Decision  and  award  by  umpire  in 
English;  Opinion  by  umpire  in  English;  Opinion  by  umpire  in  Spanish. 


10  REPORT  OF  ROBERT  C.  MORRIS. 

No.  7. 

Claim  of  Ernest  C.  Bliss,  William  B.  Boulton,  John  Schimmell, 
AND  Fhedehick  A.  Dallett,  Partners,  Doing  Business  as  Boul- 
ton, Bliss  c*c  Dallett. 

summary  of  proceedings. 

Amount  chiimed,  $49,428.27;  interest,  |5,506.25. 
Claim  tiled  June  12  (Min,,  p.  17).     Oral   presentation.     Brief  in 
support. 

Answer  tiled  fluly  1  (Min.,  p.  35). 

Replication  tiled  Ju\y  3  (Min.,  p.  41). 

Award  for  ^27,644.23  in  United  States  gold,  July  17  (Min.,  p.  57). 

Opinion  by  Paul,  Commissioner. 

list  of  documents. 

Memorial;  Brief;  Answer;  Replication;  New  proofs;  Decision  and 
award  in  English;  Decision  and  award  in  Spanish;  Opinion  in  English. 

No.  8. 

Claim  of  Leonard  B.  Smith,  Owner  of  the  Schooner  Alliance. 

summary  of  proceedings. 

Amount  claimed,  $6,239.32;  interest,  $1,007.66. 
Claim  filed  June  12   (Min.,  p.  17).     Oral  presentation.     Brief  in 
support. 

Answer  filed  Jul}'  1  (Min.,  p.  35). 

Replication  tiled  July  1  (Min.,  p.  37). 

Supplemental  memorial  filed  July  1  (Min.,  p.  37). 

Award  for  $2,928.33  in  United  States  gold  July  14  (Min.,  p.  53). 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief ;  Answer;  Replication;  Supplementary  memorial  as 
to  present  ownership  of  claim;  Decision  and  award  in  English;  Deci- 
sion and  award  in  Spanish;  Opinion,  in  Spanish;  Opinion  in  English. 

No.  9. 

Claim  of  A.  T.  Stubbs. 

StnVIMARY   of   PROCEEDINGS. 

Amount  claimed,  $100;  interest,  $70.25. 

Claim  filed  June  12  (Min.,  p.  17).  Oral  presentation.  Brief  in 
support. 

Answer  filed  Julj^  1  (Min.,  p.  35). 

Claim  disallowed  Jul}^  10  by  Commission  (Min.,  p.  49). 

LIST   OF    DOCUMENTS. 

Memorial;  Brief ;  Answer;  Decision  in  English;  Decision  in  Spanish. 


KEPORT  OF  ROBERT  C.  MORRIS.  11 

No.  10. 

Claim  of  J.  S.  Emery  &  Co.,  Owners  of  the  Schooner  Mark 

Gray. 

summary  of  proceedings. 

Amount  claimed,  $1,537.50;  interest,  $338.25. 

Claim  tiled  June  12  (Min..  p.  IT).  Oral  presentation.  Brief  in 
.support. 

Answer  filed  Jul}-  1  (Min..  p.  35). 
Replication  filed  July  3  (Min.,  p.  11). 
Claim  disallowed  July  IT  (Min.,  p.  57). 
Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Opinion  in  English;  Opin- 
ion in  Spanish. 

No.  11. 

Claim  of  the  American  and  Electric  Manufacturing  Company. 

summary  of  proceedings. 

Amount  claimed,  ^6,000;  interest,  $272.50. 

Claim  filed  June  12  (Min.,  p.  51).  Oral  presentation.  Brief  in 
support. 

Answer  filed  July  1  (Min.,  p.  3T). 

Award  for  $2,000  in  United  States  gold  July  21  (Min.,  p.  63). 

Opinion  by  Paul,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief ;  Answer;  Decision  and  award  in  English;  Decision 
and  award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  12. 
Claim  of  Isaac  J.  Lasry. 

SUMMARY   OF   PROCEEDINGS. 

.Amount  claimed,  $15,880. 

Claim  filed  June  12  (Min.,  p.  IT).  Oral  presentation.  Brief  in 
support. 

Answer  filed  July  1  (Min.,  p.  37). 

Additional  evidence  submitted  July  10  (Min.,  p.  59). 

Rejected  July  21  (Min.,  p.  63). 

Award  for  $2,0(»0  in  United  States  gold  July  21  (Min.,  p.  63). 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Additional  evidence;  Decision  and  award 
in  English;  Decision  and  award  in  Spanish;  Opinion  in  English;  Opin- 
ion in  Spanish. 


12  REPORT  OF  ROBERT  C.  MORRIS. 

No.  18. 

Claim  of  Eli  as  Assad  Flutie. 
suxmmaky  of  proceedings. 

Amount  chiiined,  $80,000. 

Claim  tiled  flune  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 

Answer  filed  July  1  (Min.,  p.  37). 

Hoplication  tiled  July  7  (Min.,  p.  4.5). 

Claim  dismissed  without  prejudice  for  want  of  citizenship  August  1 
(Min.,  p.  77). 

Thirteen  and  11  joined  in  opinion  rendered  by  Bainbridge,  Com- 
missioner. 

Additional  evidence  as  ground  of  reopening  presented  to  Commis- 
sion October  16.     Rejected  same  da}'  (Min.,  p.  143). 

list   OF    DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Decision  in  English;  Deci- 
sion in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  11. 

Claim  of  Emelia  Alsous  Flutie. 

summary  of  proceedings. 

Amount  claimed,  $21, .500. 

Claim  filed  June  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 

Answer  filed  July  1  (Min.,  p.  37). 

Replication  filed  July  7  (Min.,  p.  45). 

Claim  dismissed  without  prejudice  for  want  of  citizenship  August  1 
(Min.,  p.  77). 

Opinion,  see  No.  13. 

Additional  evidence  as  ground  of  reopening  presented  to  Commis- 
sion October  16.     Rejected  same  day  (Min.,  p.  143). 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Decision  in  English;  Deci- 
sion in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  15. 

Claim  of  George  Freeman  Underhill  and  Jennie  Laura  Under- 

HiLL,  His  Wife. 

summary  of  proceedings. 

Amount  claimed,  $332,316.28. 

Claim  filed  June  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 


REPORT  OF  ROBERT  C.  MORRIS.  13 

Extension  of  ten  days'  time  from  July  1  for  answer  by  Venezuela 
(Min.,  p.  35). 

Answer  filed  July  10  (Min.,  p.  49). 

Replication  filed  July  17  (Min.,  p.  57). 

Commissioners  disagreed  in  written  opinions  and  claim  was  referred 
to  umpire  September  8  (Min.,  p.  113). 

Decision  by  umpire  dismissing  claim  of  George  Freeman  Underbill 
for  want  of  evidence  as  to  the  right  of  Jennie  Laura  Underbill  to 
appear  as  claimant  in  place  ef  her  deceased  husband,  October  31  (Min., 

p.  155).  ^     J    .   . 

Memorandum  forwarded  on  November  28  with  letters  of  admmis- 
tration  of  Jennie  Laura  Underbill,  asking  that  the  claim  of  George 
Freeman  Underbill  by  his  administratrix  be  considered,  and  asking 
that  claim  of  Jennie  Laura  Underbill  be  considered. 

Commission  received  above  December  9  and  reserved  decision  until 
next  session  (Min.,  p.  167).  On  December  12  Commission  decided 
not  to  admit  the  new  evidence  presented,  in  view  of  the  terms  of  the 
protocol  and  of  rule  4  of  the  procedure  of  the  Commission. 

Award  for  83,000  by  umpire  to  Jennie  Laura  Underbill  in  United 
States  gold  November  28  (Min.,  p.  165). 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Supplementary  memorial 
of  J.  L.  Underbill ;  eight  original  photographs;  Opinion  by  Bainbridge, 
Commissioner,  in  English;  Opinion  by  Bainbridge,  Commissioner,  in 
Spanish;  Opinion  by  Paul,  Commissioner,  in  English;  Opinion  by  Paul, 
Commissioner,  in  Spanish;  Decision  by  umpire  on  claim  of  G.  F. 
Underbill  in  English;  Decision  by  umpire  on  idem  in  Spanish;  Decision 
by  umpire  and  award  in  English;  Decision  and  award  by  umpire  in 
Spanish;  Opinion  by  umpire  in  English;  Opinion  by  umpire  in  Spanish. 

No.  16. 

Claim  of  the  Administratrix  and  Heirs  at  Law  of  Giovanni 
TuRiNi,  Deceased,  the  Gorham  Manufacturing  Company,  and 
Joseph  Carabelli. 

summary  of  proceedings. 

Amount  claimed,  $23,870;  interest,  ^,709.55. 

Claim  filed  June  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  1  for  answer  by  Venezuela 
(Min.,  p.  35). 

Answer  filed  July  10  (Min.,  p.  49). 

Replication  filed  July  16. 

Commissioners  disagreed  in  written  opinions  and  claim  referred  to 
umpire  August  4  (Min.,  p.  83). 

Award  for  $19,611.60  in  United  States  gold  August  21  (Min.,  p.  101). 

Reservation  for  Gorham  Manufacturing  Company,  $6,319  in  United 
States  gold  and  interest  at  6  per  cent  from  July  1,  1897.  Joseph 
Carabelli,  $3,095  in  United  States  gold  and  interest  at  6  per  cent  from 
October  22,  1898  (Min.,  p.  101). 


14  REPORT   OF   ROBERT    0.   MORRIS. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Opinion  bj^  Bainbridge, 
Coniniissionor,  in  Eno-lish;  Opinion  by  Bainbridge,  Commissioner,  in 
Spanish;  Opinion  by  Panl,  Commissioner,  in  English;  Opinion  by  Paid, 
Commissioner,  in  Spanish;  Decision  and  award  bj'^  umpire  in  English; 
Decision  and  award  by  umpire  in  Spanish;  Opinion  by  umpire  in 
English;  Opinion  by  umpire  in  Spanish. 

No.  17. 
Claim    of    Margaret  Turini    as    Administratrix    of    Giovanni 

TURINI. 
SUMMARY   OF   PROCEEDINGS. 

Amount  claimed,  $1,009.61;  interest,  $132.62. 

Claim  tiled  June  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 

Extension  of  time  until  July  10  to  file  amendment  granted  July  1 
(Min.,  p.  37). 

Extension  of  ten  days  from  filing  amendment  to  answer  (Min.,  pp. 
35  and  37). 

Additional  statement  filed  July  7  (Min. ,  p.  45). 

Answer  filed  July  10  (Min.,  p.  49). 

Award  for  $1,140.86  in  United  States  gold  August  1  (Min.,  p.  75). 

Opinion  by  Paul,  Commissioner. 

LIST   OF    DOCUMENTS. 

Memorial;  Brief;  Supplemental  proof  fixing  amount  of  claim; 
Answer;  Decision  and  award  in  English;  Decision  and  award  in 
Spanish;  Opinion  by  Paul,  Commissioner,  in  English;  Opinion  by 
Paul,  Commissioner,  in  Spanish. 

No.  18. 

Claim  of  Henry  R.  Kuhnhardt,  George  W,  Kulhke,  and  Franz 
Mueller,  Partners,  as  Kuhnhardt  &  Co. 

SUMMARY   OF   PROCEEDINGS. 

Amount  claimed:  First  claim,  $46,875;  second  claim,  $19,211.94. 

Claim  filed  June  16  (Min.,  p.  21).  Oral  presentation.  Brief  in 
support. 

Claim  supplemental  to  second  claim  filed  June  23  (filed  nunc  pro 
tunc,  but  Venezuela  allowed  fifteen  days  from  date  to  answer  this 
supplemental  claim).     Amount  claimed,  $2,635.77  (Min.,  p.  29). 

Extension  of  ten  days'  time  from  July  1  for  answer  by  Venezuela 
(Min.,  p.  35). 

Answer  filed  July  10  (Min.,  p.  49). 

Replication  filed  July  16. 

First  claim  disallowed  without  prejudice  August  18. 

Second  claim,  award  for  $13,947,  August  18  (Min.,  p.  97). 

Separate  opinions  bj^  Commissioners. 


EEPOET    OF   ROBEET    C.   MOREIS.  15 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Pamphlet;  Supplementary  claim  and  brief,  nunc 
pro  tunc;  Answer;  Replication;  Decision  and  award  in  English; 
Decision  and  award  in  Spanish;  Opinion  in  English;  Opinion  in 
Spanish. 

No.  19. 
Claim  of  the  Orinoco  Steamship  Company. 

SUMMARY   of   PROCEEDINGS. 

Amount  claimed,  $1,401,539.05. 

Claim  filed  June  16  (Min.,  p.  23).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  1  for  answer  by  Venezuela 
(Min.,  p.  35). 

Motion  to  amend  memorial  July  T.     Granted  (Min,,  p.  45). 

Motion  made  July  10  to  extend  time  for  answer  by  Venezuela 
to  July  14.     Granted  (Min.,  p.  49). 

Answer  filed  July  14  (Min.,  p.  53). 

Extension  of  ten  days'  time  for  replication  by  United  States  granted 
July  17  (Min.,  p.  59). 

Replication  filed  July  25  (Min.,  p.  71).  Presented  to  Commission 
July  28. 

The  Commissioners  disagreed  in  written  opinions,  and  claim  was 
referred  to  umpire  December  9  (Min.,  p.  167). 

Award  for  $28,224.93  in  United  States  gold  February  20,  1904. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Two  pamphlets  and  typewritten  insertions;  Amend- 
ment of  memorial;  Answer;  Original  document  as  part  of  answer,  ten 
days'  extension  granted  agent  of  United  States  to  file  replication; 
Replication;  One  original  exhibit  ''A;"  One  original  exhibit  "  B;"  One 
original  exhibit  "C;"  Opinion  by  Doctor  Grisanti,  Commissioner, 
denies  jurisdiction  and  disallows  claim;  Opinion  by  Bainbridge,  Com- 
missioner, admits  jurisdiction  and  holds  that  an  award  should  be  made 
thereon;  Opinion  by  umpire. 

No.  20. 

Claim  of  Frances  Irene  Roberts,  Administratrix  of  the  Estate 
AND  Sole  Heir  at  Law  of  William  Quirk,  Deceased. 

SUMMARY   OF   PROCEEDINGS. 

Amount  claimed,  1187,168.08. 

"Claim  filed  June  19  (Min.,  p.  25).     Oral  presentation.     Brief  in 
support. 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min.,  p.  35). 

Extension  of  ten  days'  time  for  replication  by  United  States  granted 
July  17  (Min.,  p.  59). 


16  REPORT  OF  ROBERT  0.  MORRIS. 

Replication  filed  July  24  (Min.,  p.  69). 

Award  for  $18,154.61  in  United  States  gold  August  25  (Min.,  p.  103). 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Decision  and  award  in  Eng- 
lish; Decision  and  award  in  Spanish;  Opinion  in  English;  Opinion  in 
Spanish. 

No.  21. 

Claim  of  Susanna  Maud  Jarvis  and  Rebecca  Josephine  Jarvis. 

summary  of  proceedings. 

Amount  claimed,  $81,000;  interest,  $227,629. 

Claim  filed  June  19  (Min.,  p.  25).  Oral  presentation.  Brief  in 
support. 

Filed  memorandum  regarding  assignments  under  this  claim  June  19 
(Min.,  p.  25). 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min. ,  p.  53). 

Extension  of  ten  daj^s'  time  for  replication  by  United  States  granted 
July  17  (Min.,  p.  59). 

Replication  filed  July  28. 

Claim  disallowed  September  18. 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Replication;  Decision  in  English;  Deci- 
sion in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  22. 
Claim  of  Henry  Woodruff. 

SUMMARY    of   PROCEEDINGS. 

Amount  claimed,  $46,000;  interest,  $176,182.42. 

Claim  filed  June  19  (Min.,  p.  25).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min.,  p.  53). 

Extension  of  ten  days'  time  for  answer  by  United  States  granted 
July  17  (Min.,  p.  59). 

Contract  of  recession  made  about  December  19,  1863,  b}^  Rojas  & 
Mercano.  Requested  bv  Commission  of  United  States  September  8 
(Min.,  p.  115). 

Contract  produced  September  11  (Min.,  p.  117). 

Commissioners  disagreed  and  claim  referred  to  umpire  on  Septem- 
ber 18  (Min.,  p.  121). 

Claim  dismissed  by  umpire  without  prejudice  for  want  of  jurisdic- 
tion on  October  2. 


REPOET    OF   ROBERT    C.   MORRIS.  17 

LIST   OF   DOCUMENTS. 

Memorial;  brief;  answer;  facsimile  of  bonds;  Contract  of  Decem- 
ber 19,  1863;  Opinion  by  Bainbridge,  Commissioner,  in  English; 
Opinion  by  Bainbridge,  Commissioner,  in  Spanish;  Opinion  by  Doctor 
Paul,  Commissioner,  in  English;  Opinion  b}"  Doctor  Paul,  Commis- 
sioner, in  Spanish;  Additional  expediente  of  ministry  of  public  works 
received  from  Venezuelan  Commissioner;  Decision  b}^  umpire  in  Eng- 
lish; Decision  by  umpire  in  .Spanish;  Opinion  by  umpire  in  English; 
Opinion  by  umpire  in  Spanish. 

No.  23. 

Claim  of  William  V.  Spader  and  Others,  Heirs  and  Legatees 
OF  Admiral  Louis  Brion,  Deceased. 

summary  OF  proceedings. 

Amount  claimed,  $74,527.50;  interest,  $172,922.12. 
Claim  tiled  June  19  (Min.,  p.  25).     Oral  presentation. 
Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 
Answer  filed  July  14  (Min.,  p.  53). 
Claim  disallowed  August  21  (Min.,  p.  101). 
Opinion  by  Bainbridge,  Commissioner. 

LIST   OF    documents. 

Memorial;  Answer;  Decision  in  English;  Decision  in  Spanish; 
Opinion  in  English;  Opinion  in  Spanish. 

No.  24. 

Claim  of  Charles  W.  Torrey. 

summary  of  proceedings. 

Amount  claimed,  $10,000. 

Claim  filed  June  19  (Min.,  p.  25).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min.,  p.  53). 

Award  for  $250  in  United  States  gold  on  August  25. 

Opinion  by  Paul,  Commissioner. 

list   of   DOCUMENTS. 

Memorial;  Brief;  Answer;  Decision  and  award  in  English;  Decision 
and  award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  25. 

Claim  of  George  PI  Gage. 

SUMMARY    OF   PROCEEDINGS. 

Amount  claimed,  Sl2,350. 

Claim  filed  June  19  (Min.,  p.  27).  Oral  presentation.  Brief  in 
support. 

y.  Doc.  317,  58-2 2 


18  REPORT  OF  ROBERT  C.  MORRIS. 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  tiled  July  11  (Min.,  p.  53). 

Commissioners  disagreed,  and  claim  was  referred  to  umpire  Septem- 
ber 1  (Min.,  p.  111). 

Awaixi  by  umpire  for  $100  in  United  States  gold  on  September  15. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Opinion  by  Bainbridge,  Commissioner, 
in  English;  Opinion  by  Bainl)ridge,  Commissioner,  in  Spanish;  Opinion 
by  Paul,  Commissioner,  in  English;  Opinion  bj^  Paul,  Commissioner, 
in  Spanish;  Decision  and  award  in  English;  Decision  and  award  in 
Spanish;  Opinion  by  umpire  in  English;  Opinion  by  umpire  in  Spanish. 

No.  26. 

Claim  of  William  B.  Matchett. 

summary  of  proceedings. 

Amount  claimed,  $100,900. 

Claim  filed  June  19  (Min.,  p.  27).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min.,  p.  63). 

Claim  disallowed  September  4. 

Opinion  by  Commission. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Decision  in  English;  Decision  in  Spanish; 
Opinion  in  English;  Opinion  in  Spanish. 

No.  27. 

Claim  of  Lorenzo  Mercado. 

summary  of  proceedings. 

Amount  claimed,  $160,000. 

Claim  filed  June  19  (Min.,  p.  27).  Oral  presentation.  Brief  in 
support. 

Exteasion  of  ten  days'  time  from  July  3  for  answer  by  Venezuela 
(Min.,  p.  41). 

Answer  filed  July  14  (Min.,  p.  53). 

Claim  withdrawn  August  18  in  accordance  with  instructions  received 
from  United  States  legation,  Caracas  (Min.,  p.  97). 

LIST   OF   DOCUMENTS 

Memorial;  Brief;  Answer. 


REPORT  OF  ROBERT  C  MORRIS.  19 

No.  28. 

Claim  of  F.  Scandella. 

summary  of  proceedings. 

Amount  claimed,  |8,000. 

Claim  filed  June  23  (Min.,  p.  29).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  7  for  answer  by  Venezuela 
(Min.,  p.  45). 

Answer  filed  July  17  (Min.,  p.  57). 

Claim  disallowed  by  Commission  September  11. 

Opinion  by  Paul,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Decision  in  English;  Decision  in  Span- 
ish; Opinion  in  English;  Opinion  in  Spanish. 

No.  29. 

Claim  of  William  H.  Phelps. 

summary  of  proceedings. 

Amount  claimed,  $400. 

Claim  filed  June  23  (Min.,  p.  29).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  7  for  answer  by  Venezuela 
(Min.,  p.  45). 

Answer  filed  July  17  (Min.,  p.  57). 

Award  for  $315,25  in  United  States  gold  on  August  1. 

Opinion  by  Commission. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Decision  and  Award  in  English;  Decision  and 
Award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  30. 

Claim  of  Joseph  Anderson,  Jr. 

summary  of  proceedings. 

Amount  claimed,  $10,769.23;  interest,  $18,092.30. 
Claim  filed  June  26  (Min.,  p.  33).     Oral   presentation.     Brief   in 
support. 

Extension  of  ten  days'  time  from  July  10  for  answer  by  Veneziiela. 
Answer  filed  July  21  (Min.,  p.  63). 

Claim  dismissed  without  prejudice  for  want  of  jurisdiction  August 25. 
Opinion  by  Bainbridge,  Commissioner. 


20  REPOKT    OF    KUBERT    C.   MORRIS. 

LliST   OF    DOCUMENTS. 

]Momorial;  Brief;  Answer;  Decision  in  English;  Decision  in  Spanish; 
Opinion  in  English;  Opinion  in  Spanish. 

No.  31. 

Claim  of  La  Guayra  Cable  Company. 

summary  of  troceedings. 

Amount  claimed,  $286,<)00. 

Claim  tiled  .June  26  (Min.,  p.  33).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  10  for  answer  by  Venezuela 
(Min.,  p.  51). 

Answer  tiled  July  21  (Min.,  p.  63). 

Claim  disallowed  by  Commission  September  8. 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Brief;  Answer;  Two  original  expedientes  as  part  of 
answer;  Decision  in  English;  Decision  in  Spanish;  Opinion  in  English; 
Opinion  in  Spanish. 

No.  32. 

Claim  of  Thomson   Houston   International  Electkic  Company. 

summary  of  proceedings. 

Amount  claimed,  $9,427.93. 

Claim  filed  June  26  (Min.,  p.  33).     Oral  presentation. 

Extension  of  ten  days'  time  from  fJuly  10  for  answer  by  Venezuela 
(Min.,  p.  51). 

Answer  tiled  July  21  (Min.,  p.  63). 

Extension  of  ten  days'  time  for  replication  by  United  States  granted 
on  Julvl7(Min.,p.  51). 

Replication  filed  July  24  (Min.,  p.  67). 

Claim  dismissed  without  prejudice  for  want  of  jurisdiction  Septem- 
ber 22. 

Opinion  by  Paul,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Replication;  Decision  in  English;  Decision  in 
Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  33. 

Claim  of  Henry  C.  Bullis. 

summary  of  proceedings. 

Amount  claimed,  $50,000. 

Claim  filed  June  26  (Min.,  p.  33).     Oral  presentation. 
Extension  of  ten  days'  time  from  July  10  for  answer  by  Venezuela 
(Min.,  p.  51). 


REPORT  OF  ROBERT  C.  MORRIS.  21 

Answer  filed  July  21  (Min.,  p.  63). 

Extension  of  ten  days'  time  for  replication  by  United  States  granted 
July  17. 

Replication  filed  July  24  (Min.,  p.  67). 
Claim  disallowed  September  1. 
Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Replication;  Decision  in  English;  Decision  in 
Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  34. 

Claim  of  J.  B.  F.  P.  Monnot. 

SUMMARY   OF   PROCEEDINGS. 

Amount  claimed,  $206,681.12;  interest,  $19,176.33. 

Claim  filed  June  26  (Min.,  p.  33).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  10  for  answer  by  Venezuela 
(Min.,  p.  51). 

Answer  filed  July  21  (Min.,  p.  63). 

Award  for  $4,692.08  in  United  States  gold  on  September  22. 

Opinion  l>y  Bainbridge,  Commissioner. 

list   OF    DOCUMENTS. 

Memorial;  Brief;  Answer;  Decision  and  award  in  English;  Deci- 
sion and  award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  35. 

Claim  of  J.  B.  Bance,  Receiver  in  Bankruptcy  of  Ernestro 
Capriles,  for  the  Benefit  of  Weeks,  Potter  &  Co.,  Sea- 
bury  &  Johnson,  and  Johnson  &  Johnson,  American  Citi- 
zens, Claimants. 

summary  of  proceedings. 

Amount  claimed,  $2,995.38. 

Claim  filed  July  1  (Min.,  p.  37).  Oral  presentation.  Brief  in 
support. 

Extension  of  ten  days'  time  from  July  14  for  answer  l)y  Venezuela 
(Min.,  p.  53). 

Answer  filed  July  26  (Min.,  p.  69). 

Replication  filed  August  1  (Min.,  p.  77). 

Claim  dismissed  without  prejudice  for  want  of  jurisdiction  Septem- 
ber 22. 

Opinion  b}'  Paul,  (Commissioner. 

LIST   OF    documents. 

Memorial;  Brief;  Answer;  Replication;  Decision  in  English;  Deci- 
sion in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 


22  REPORT  OF  ROBERT  C.  MORRIS. 

No.  30. 

Claim  of  Georgk  W.  Upton. 

summary  of  proceedings. 

Amount  claimed,  $30,220.43. 

Claim  tiled  July  1  (Min.,  p.  39).     Oral  presentation. 

Filed  additional  papers  July  7  (Min.,  p.  4.5). 

Extension  of  ten  days'  time  from  July  14  for  answer  by  Venezuela 
(Min.,  p.  53). 

Answer  tiled  July  26  (Min.,  p.  69). 

Extension  of  time  for  replication  by  United  States  until  August  5 
granted  August  1  (Min.,  p.  77). 

Further  extension  to  August  8  granted  August  4  (Min.,  p.  87). 

Further  extension  to  August  11  granted  August  7  (Min.,  p.  89). 

Keplication  filed  "with  secretaries"  August  14  (Min.,  p.  95). 

Additional  evidence  filed  with  replication  (Min.,  p.  93). 

Award  for  $5,376.25  in  United  States  gold  on  September  25. 

Opinion  by  Bain  bridge,  Commissioner. 

LIST    OF   DOCUMENTS. 

Memorial;  Supplemental  proofs;  Answer;  Replication  and  new 
proofs;  Decision  and  award  in  English;  Decision  and  award  in  Span- 
ish; Opinion  in  English;  Opinion  in  Spanish. 

No.  37. 

Claims  of  Mauricio  Berrizbetia. 

summary  of  proceedings. 

Amount  claimed,  12,230.77. 

Claim  filed  July  1  (Min.,  p.  39).     Oral  presentation. 
Extension  of  ten  days'  time  from  July  14  for  answer  by  Venezuela 
(Min.,  p.  63). 

Answer  filed  July  26  (Min.,  p.  69). 
Replication  filed  August  1  (Min.,  p.  77). 
Withdrawn  August  25  (Min.,  p.  105). 

LIST   OF   DOCUMENTS. 

Memorial;  Copy  of  certificate  of  baptism;  Answer;  Replication. 

No.  38. 

Claim  of  Virgilio  Del  Genovese. 

summary  of  proceedings. 

Amount  claimed:  Claim  No.  1,  179,219.73;  claim  No.  2,  $50,432.69; 
claim  No.  3,  $525. 

Claims  filed  July  1  (Min.,  p.  39).  Oral  presentation.  Brief  in 
support. 


REPORT  OF  ROBERT  C.  MORRIS.  23 

Extension  of  ten  days'  time  from  July  14  for  answer  by  Venezuela 
(Min.,  p.  53). 

Answer  filed  July  26  (Min.,  p.  69). 

Award  for  170,083.28  in  United  States  gold  on  October  2. 

Opinion  by  Paul,  Commissioner. 

LIST   OP   DOCUMENTS. 

Memorial;  Brief;  Answer;  Decision  and  award  in  English;  Decision 
and  award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  39. 

Claim  of  La  Guayra  Electric  Light  and  Power  Company. 

summary  of  proceedings. 

Amount  claimed,  $1,502,659.61. 

Claim  filed  July  1  (Min.,  p.  39).     Oral  presentation. 

Extension  of  ten  days'  time  from  July  14  for  answer  bj^  Venezuela 
(Min.,  p.  53). 

Answer  filed  July  26  (Min.,  p.  69). 

Extension  of  time  for  replication  until  August  5,  granted  August  1 
(Min.,  p.  77). 

Further  extension  to  August  6,  granted  August  4  (Min.,  p.  87). 

Further  extension  to  August  14,  granted  August  7  (Min.,  p.  89). 

Replication  filed  August  14  with  additional  evidence  (Min.,  p.  95). 

Award  for  $2,659.61  in  United  States  gold  on  October  2  for  one 
item.  The  remaining  items  dismissed  without  prejudice  for  want  of 
jurisdiction. 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Replication  and  new  proofs;  Decision  and 
kward  in  English;  Decision  and  award  in  Spanish;  Opinion  in  English. 

No.  40. 

Claim  of  Henry  T.  Duke. 

summary  of  proceedings. 

Amount  claimed:  Claim  No.  1,  $7,926.92;  claim  No.  2,  $2,800;  claim 
No.  3,  13,000;  total  interest,  $1,199.60. 

Claims  filed  July  1  (Min.,  p.  53).     Oral  presentation. 

Answer  filed  July  26  (Min.,  p.  69). 

Extension  of  time  for  replication  by  United  States  until  August  5, 
granted  August  1  (Min.,  p.  77). 

Further  extension  until  August  6,  granted  August  4  (Min.,  p.  87). 

Replication  filed  August  7  (Min.,  p.  89). 

Claim  disallowed  October  2. 

Opinion  by  Paul,  Commissioner. 


24  REPORT    OF    ROBERT    C.    MORRIS. 

LIST   OF   DOCUMENTS. 

iSIoniorial;  Answer;  Keplieation;  Decision  in  Entrlisii;  Decision  in 
Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  41. 

CiAiM  OF  Sofia   Ida   Wiskow  de    Rudloff   and  Frederick    W. 

RUDLOFF. 
SUMMARY    OF    PROCEEDINGS. 

Amount  claimed,  $613,423.27. 

Claim  lilod  July  1.     Oral  presentation. 

Extension  of  ten  days'  time  from  July  14  for  answer  l)v  Venezuela 
(Min.,  p.  53). 

Further  extension  until  August  1,  granted  July  20  (INlin..  p.  71). 

Answer  tiled  August  1  (Min.,  p.  77). 

Replication  tiled  August  7  (Min.,  p.  89). 

Commissioners  disagreed  on  question  of  jurisdiction  and  referred  the 
matter  to  the  umpire,  in  written  opinion,  for  interlocutory  decision, 
October  13  (Min.,  p.  139). 

Umpire  tiled  interlocutory  decision,  holding  that  Commission  pos- 
sesses jurisdiction,  October  24  (Min.,  p.  153). 

Award  by  Commission  for  $75,745  in  United  States  gold  on  Novem- 
ber 4. 

Opinion  b}^  Bainbridge,  Commissioner. 

Opinion  by  Grisanti,  Commissioner. 

LIST   OF   DOCUMENTS. 

Memorial;  Original  memorial  in  Spanish;  Original  documents  B,  D, 
G;  Demurrer;  Answer;  Official  Gazettes  Nos.  8772,  8773,  8775,  and 
877(5;  Replication;  Opinion  on  jurisdiction  by  Bainbridge,  in  English; 
Opinion  on  jurisdiction  by  Bainbridge,  in  Spanish;  Opinion  on  juris- 
diction by  Doctor  Paul,  in  English;  Opinion  on  jurisdiction  by  Doctor 
Paiil,  in  Spanish;  Interlocutory  decision  by  umpire,  in  English;  Inter- 
locutory decision  by  umpire,  in  Spanish;  Opinion  by  umpire  on  juris- 
diction, in  English;  Opinion  by  umpire  on  jurisdiction,  in  Spanish; 
Decision  and  award,  in  English;  Decision  and  award,  in  Spanish; 
Opinion  b}'  Bainbridge,  (Commissioner,  in  English;  Opinion,  by 
Grisanti,  Commissioner,  in  English. 

No.  42. 

Claim  of  George  Growther. 

summary  of  proceedings. 

Amount  claimed,  $3,000;  interest,  $138.75;  second  claim  undeter- 
mined. 

Claim  tiled  with  the  secretaries  July  3  (Min.,  pp.  41  and  51). 
Oral  presentation  July  10.     Brief  in  support  (Min.,  p.  51). 
Extension  of  tif  teen  days'  time  from  July  10  for  answer  by  Venezuela. 
Answer  tiled  July  26  (Min.,  p.  71). 

Award  for  $3,138.75  in  United  States  gold  on  October  13. 
Opinion  by  Bainbridge,  Commissioner. 


REPORT    OF   ROBERT    C.   MORRIS.  25 

LIST   OF   DOCUMENTS. 

Original  memorial  in  Spanish;  Translated  memorial;  Translated 
proofs;  Brief;  Answer;  Decision  and  award  in  English;  Decision  and 
award  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  43. 

Claim  of  Gj:orge  W.  Upton  (No.  2). 

SUMMARY    of   PROCEEDINGS. 

Amount  claimed,  ^100,00(>. 

Extension  obtained  on  July  1  to  present  claim  on  July  7  (Min.,  p.  37). 
Claim  tiled  July  7  (Min.,  p.  45).     Oral  presentation. 
Extension  of  len  days'  time  from  July  21  for  answer  by  Venezuela 
(Min.,  p.  65). 
Answer  filed  August  1  (Min.,  p.  77). 
Replication  filed  August  11  (Min.,  p.  93). 
Claim  disallow^ed  September  29. 
Opinion  by  Paul,  Commissioner. 

list   of   DOCUMENTS. 

Memorial;  Answer;  Replication;  Decision  in  English;  Decision  in 
Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  44. 

Claim  of  Pedro  Miguel  Parez. 

summary  of  proceedings. 

Amount  claimed,  $54,950. 

Extension  obtiiined  on  July  1  to  present  claim  on  July  21  (Min., 
p.  37). 

Claim  filed  July  14.     Oral  presenta,tion. 

Extension  of  ten  days'  time  from  July  28  for  answer  by  Venezuela 
(Min.,  p.  73). 

Answer  filed  August  7  (Min.,  p.  89). 

Claim  dismissed  without  prejudice  for  want  of  jurisdiction  on  Octo- 
ber 13. 

Opinion  by  Commission. 

LIST   of    documents. 

Memorial;  Two  original  documents  and  one  passport;  Answer; 
Decision  in  P^nglish;  Decision  in  Spanish;  Opinion  in  English;  Opin- 
ion in  Spanish. 

No.  45. 

Claim  of  Geoikik  Turnbull 

summary  of  proceedings. 

Amount  claimed,  $1,622,030. 

Extension  obtained  on  June  19  to  present  claim  on  July  17  (Min., 
p.  25). 


26  REPORT  OF  ROBERT  0.  MORRIS. 

Claim  liUnl  July  17  (Min.,  p.  57).     Oral  presentation. 

Extension  of  fifteen  days'  time  from  Aiig-ust  1  for  answer  by  Ven- 
ezuela (Min.,  p.  7l>). 

Answer  tiled  August  17  (Min.,  p.  1)7). 

Extension  of  time  to  comj)letc  answer  until  August  25  requested  at 
session  of  August  17  (Min.,  p.  t)l)). 

Further  answer  filed  August  25  (Min.,  p.  105). 

Answer  of  Venezuela  joined  this  claim  and  claims  Nos.  46  and  47, 
and  the  three  claims  were  considered  together  by  the  Commission. 

Conunissioners  disagreed. 

Bainbridge,  (Commissioner,  tiled  written  opinion  on  these  three 
claims  on  December  26. 

Grisanti,  Commissioner,  reserved  his  right  to  file  his  opinion  any 
time  prior  to  January  17,  1004,  this  being  the  last  day  of  the  six 
months'  period  pro\'ided  by  the  protocol  from  the  date  of  the  first 
formal  presentation  of  these  claims. 

Opinion  by  Grisanti,  Commissioner,  filed. 

This  claim  and  claims  No.  46  and  47  referred  to  the  umpire  on 
December  26. 

Claim  disallowed  by  umpire  April  12,  1904. 

LIST   OF   DOCUMENTS. 

Memorial;    one  original   copy   of   Gaceta   Oficial,    No.   ;    one 

original  copy  of  Gaceta  Oficial,  No.  4290,  March  14,  1888;  one  original 
copy  of  Gaceta  Oficial,  No.  4989,  July  8,  1890;  one  original  copy  of 
Gaceta  Oficial,  No.  6433,  June  19,  1895;  one  original  copy  of  Gaceta 
Oficial,  No.  6877,  November  28,  1896;  Answer;  A  proroga  granted  to 
Fitzgerald,  renunciation  of  Turnbull  on  contract;  Pamphlet,  Turnbull 
informe;  Completion  of  answer  filed  by  Venezuela;  11  original  expe- 
dientes  and  documents  filed  as  evidence  by  agent  of  Venezuela  jointly 
for  claims  45,  46,  and  47,  as  follows:  Document  No.  1,  Fitzgerald 
Manoa  Co.  Expediente;  Document  A,  Memorandum  on  Manoa  ofiice; 
Document  No.  2,  Turnbull  contract  documents;  Document  3,  Re 
Pedernales  mine;  Document  B,  Memorandum  concerning  Manoa  mat- 
ter and  judgment  of  high  federal  court  in  favor  of  George  Turnbull; 
Document  7,  Re  Pedernales  and  land  concessions  to  Turnbull;  Docu- 
ment 9,  Re  Pedernales  asphalt  mine;  Document  11,  Re  cession  of  public 
lands  to  George  Turnbull;  Document  13,  Re  petitions  of  Turnbull 
about  Imatace  and  bankruptcy  of  Manoa  Company;  Document  C, 
Documents  fowarded  by  Jife  Civil  of  Dallo  Casta  re  Orinoco  Company 
(Limited);  Document  D,  Documents  re  same  matter;  Opinion  by 
Bainbridge,  Commissioner;  Opinion  by  Grisanti,  Commissioner. 

No.  46. 

Claim  of  the  Manoa  Company  (Limited). 

summary  of  proceedings. 

Amount  claimed,  $2,302,000. 

Extension  obtained  on  June  16  to  present  claim  on  August  1  (Min., 
p.  21). 

Claim  filed  July  17  (Min.,  p.  59).     Oral  presentation. 


REPOKT  OF  EGBERT  C.  MORRIS.  27 

Extension  of  fifteen  days'  time  from  August  1  foi*  answer  bv  Vene- 
zuela (Min.,  p.  79). 

Answer  filed  August  17  (Min.,  p.  97). 

Extension  of  time  to  complete  answer  until  August  25  requested  at 
session  of  August  17  (Min.,  p.  99). 

Further  answer  tiled  August  25  (Min.,  p.  105). 

Rebuttal  evidence  filed  b}^  United  States  agent  September  1  (Min. , 
p.  107). 

Agent  of  United  States  caTled  attention  to  the  absence  of  expedi- 
entes  Nos.  5  and  12,  important  documents  in  this  case,  and  suggested 
that  the  Commission  call  for  them  when  about  to  decide  claim,  Sep- 
tember 11  (Min.,  p.  109). 

Expedientes  Nos.  5  and  12  requested  by  Commission  September 
11  (Min.,  p.  117). 

Expedientes  Nos.  5  and  12  produced  September  15  (Min.,  p.  119). 

New  evidence  presented  bv  United  States  legation,  admitted  Sep- 
tember 22  (Min.,  p.  129). 

Item  of  claim  concerning  loss  of  steamship  Farihault  withdrawn 
October  16  (Min.,  p.  143). 

The  same  action  by  Commission  in  this  claim  as  in  claim  No.  45. 

Claim  disallowed  by  umpire  April  12,  1904. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Completion  of  answer  filed  by  agent  of  Vene- 
zuela; 11  original  expedientes  from  minutes  of  fomento  filed  as  evi- 
dence in  answer  jointly  for  claims  47  and  46  and  45  (see  p.  45  for 
specification);  Rebuttal  evidence  filed  in  this  case  jointly  with  claim 
No.  47  (see  claim  No.  47  for  specifiation  of  documents);  Expedientes 
Nos.  5  and  12  filed  b}'  agent  of  Venezuela;  Additional  evidence  filed 
through  United  States  legation;  Opinion  by  Bainbridge,  Commis- 
sioner. Opinion  joins  this  claim  (No.  46)  with  claims  No.  45  and  47; 
Opinion  by  Grisanti,  Commissioner;  Opinion  by  umpire. 

No.  47. 

Claim  of  the  Orinoco  Company  (Limited). 

summary  of  proceedings. 

Amount  claimed,  $1,230,000. 

Extension- obtained  on  June  16  to  present  claim  on  August  1  (Min., 
p.  21). 

Claim  filed  July  IT  (Min.,  p.  59).     Oral  presentation. 

Extension  of  fifteen  days'  time  from  August  1  for  answer  by  Vene- 
zuela (Min.,  p.  79). 

Answer  filed  August  17  (Min.,  p.  97). 

Extension  of  time  to  complete  answer  until  August  25  requested  at 
session  of  August  17  (Min.,  p.  99). 

Further  answer  filed  August  25  (Min.,  p.  105). 

Rebuttal  evidence  filed  by  United  States  agent  September  1  (Min., 
p.  107). 

Agent  of  United  States  called  attention  to  the  absence  of  expedientes 
Nos.  5  and  12,  important  documents  in  the  case,  and  suggested  that  the 


28  REPORT  OF  ROBERT  C.  MORRIS. 

Coiiimission  call  ior  them  when  a])out  to  decide  claim,  September  1 
(Mill.,  p.  1(H)). 

Expedieiites  Nos.  5  and  12  reciuested  bv  Commission  September  11 
(Min.,p.  117). 

Expedieiites  Nos,  5  and  12  produced  September  15  (Min.,  p.  119). 

The  same  action  In'  the  Conmiission  in  this  claim  as  in  claim  No.  45. 
Award  by  umpire  for  $26,020  in  United  States  gold,  April  12,  1904. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Completion  of  answer  filed  b}'^  agent  of  Vene- 
zuela; 11  documents  tiled  by  agent  of  Venezuela  in  connection  with 
answer  to  claim  (jointly  for  claims  45,  46,  and  47);  Rebuttal  evidence 
tiled  b}'  agent  for  the  United  States  jointly  referring  to  claims  46  and 
47  as  follows:  A,  Deposition  of  George  N.  Baxter;  B,  Memorandum 
of  documents  tiled;  C,  Resolution  of  Februaiy  26,  1886;  D,  Pay-roll 
book  and  three  extra  i  ay  sheets  of  the  Manoa  Company  (Limited); 
E,  Cash  book  of  the  Manoa  Company  (Limited);  F,  Journal  of  the 
Manoa  Compan}-  (Limited);  G,  Abstract  of  title  of  Manoa  Company 
(Limited)  and  successors  (requested  to  be  returned  when  Commission 
ends  its  labors);  H,  Opinions  of  Dr.  Anibal  Dominici  and  others;  1, 
Correspondence  of  George  N.  Baxter  and  memorials  of  George  Turn- 
bull  to  State  Department;  J,  Protest  of  Januar}'  4,  1896;  K,  Sundry 
certificates,  petitions,  and  notices  showing  interferences;  L,  Two  maps 
and  one  plan,  etc.;  M,  Contract  of  Orinoco  Company  (Limited);  N, 
Annual  reports  of  Orinoco  Company;  O,  Letters  to  General  Andrade 
and  General  Castro;  Q,  Official  Gazette  No.  7958  and  translation  of 
decision;  R,  Official  Gazettes  Nos.  7989,  8214,  and  8240;  S,  Deposition 
of  Charles  B.  DutJy;  T,  Deposition  of  James  E.  York;  V,  Deposition 
of  Robert  Henderson;  W,  Supplement  to  memorial  with  20  Official 
Gazettes  therein  specified. 

No.  48. 

Claim  of  William  H.  Mundy. 

summary  of  proceedings. 

Amount  claimed,  $10,000. 

Extension  obtained  on  July  1  to  present  claim  on  July  21  (Min., 
p.  37). 

Claim  tiled  July  17  (Min.,  p.  59).     Oral  presentation. 

Extension  of  ten  days'  time  from  August  1  for  answer  by  Venezuela 
(Min.,  p.  79). 

Answer  tiled  August  7  (Min.,  p.  89). 

Replication  filed  with  secretaries  August  14. 

Claim  disallowed  on  October  16. 

Opinion  by  Commission. 

Application  to  present  new  evidence  made  by  claimant  direct  and 
also  b}^  agent  of  the  United  States  on  behalf  of  claimant  December 
12.  Agent  of  Venezuela  objected  to  new  proof  being  tiled  December 
26  and  on  same  day  Commission  denied  application. 


KEPOKT    OF   ROBERT    C.   MORRIS.  29 

LIST   OF    DOCUMENTS. 

Memorial;  Answer;  Replication;  Decision  in  English;  Decision  in 
Spanish. 

No.  49. 

Claim  of  the  American  Electric  and  Manufacturing  Company. 

sumbiary'  of  proceedings. 

Amount  claimed,  ^384,142.51. 

Extension  obtained  on  July  1  to  present  claim  on  July  21  (Min.,  p. 
37). 

Claim  filed  Ju\j  21  (Min.,  p.  63).      Oral  presentation. 

Extension  of  ten  days'  time  from  August  4  for  answer  b}^  Vene- 
zuela (Min.,  p.  87). 

Answer  filed  August  16  (Min.,  p.  97). 

Extension  obtained  on  August  21  to  reply,  until  August  28  (Min.,  p. 
101). 

Replication  filed  August  26  (Min.,  p.  107). 

Eyidence  referred  to  in  Replication  filed  September  1  by  agent  of 
Venezuela  (Min.,  p.  109). 

Written  opinion  by  Grisanti,  Commissioner,  disallowing  claim. 

Bainbridge,  Commissioner,  yerbally  disagreed  and  the  matter  was 
referred  to  the  umpire  on  October  31  (Min.,  p.  155). 

Claim  disallowed  by  umpire  November  18. 

LIST   OF   documents. 

Memorial;  Answer;  Replication  and  translation  of  proof;  Opinion 
by  Doctor  Grisanti,  Commissioner,  in  English;  Opinion  by  Doctor 
Grisanti,  Commissioner,  in  Spanish;  Decision  by  umpire  in  English; 
Decision  by  umpire  in  Spanish;  Opinion  by  umpire  in  English;  Opinion 
by  umpire  in  Spanish. 

No.  50. 
Claoi  OF  Lorenzo  Mercado. 

SUMMARY    OF   PROCEEDINGS. 

Amount  claimed,  $304,198.96. 

Extension  obtained  on  July  1  to  pres'cnt  claim  on  July  21  (Min.,  p. 
37). 

Claim  filed  July  21  (Min.,  p.  71).     Oral  presentation. 

Extension  of  ten  days'  time  from  August  4  foranswer  by  Venezuela 
(Min.,  p.  87). 

Answer  filed  August  11  (Min.,  p.  93). 

Claim  withdrawn  August  18  in  accordance  with  instructions  receiyed 
from  United  States  legation,  Caracas  (Min.,  p.  97), 


30  RErOKT    OF    KOJ3EKT    C.   MOKKIS. 

LIST   OF    DOCUMENTS. 

Memorial;  Proofs  (two  original  documents  in  Spanish);  Answer. 

No.  51. 

Claim  of  the  Heirs  of  Charles  Raymond. 

summary  of  proceedings. 

Amount  claimed,  $78,520. 

Extension  obtained  on  July  1  to  present  claim  on  July  28  (Min., 
p.  37). 

Claim  filed  Jul}"  28  (Min.,  p.  37).     Oral  presentation. 

Extension  of  ten  days'  time  from  August  4  for  answer  by  Venezuela 
(Min.,  p.  87). 

Answer  filed  August  11  (Min.  p.  93). 

Replication  filed  August  18  (Min.,  p.  97). 

Claim  disallowed  Noyember  11. 

Separate  opinions  by  Grisanti  and  Bainbridge,  Commissioners. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Replication  and  neweyidence;  Decision  in  Eng- 
lish; Decision  in  Spanish;  Opinion  by  Bainbridge,  Commissioner,  in 
English;  Opinion  by  Bainbridge,  Commissioner,  in  Spanish;  Opinion 
by  Grisanti,  Commissioner,  in  English;  Opinion  by  Grisanti,  Com- 
missioner, in  Spanish. 

No.  52. 
Claim  of  W.  H.  Volkmar. 

SUMMARY    of    PROCEEDINGS. 

Amount  claimed,  $16,184.60;  interest,  $5,332.40. 
Claim  filed  July  28,  permission  to  file  haying  been  granted  by  the 
Commission  (Min.,  p.  71). 

Oral  argument  to  Commission. 

Extension  of  ten  days'  time  from  August  4  for  answer  by  Venezuela. 

Answer  filed  August  16  (Min.,  p.  97). 

Replication  filed  August  21  (Min.  p.  101). 

Claim  disallowed  October  31. 

Opinion  by  Bainbridge,  Commissioner. 

LIST   OF    DOCUMENTS. 

Memorial  and  proofs;  Answer;  Replication;  Decision  in  English; 
Decision  in  Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  53. 

Claim  of  Flannagan,  Bradley,  Clark  &  Company. 

summary  of  proceedings. 

Amount  claimed,  $175,800;  interest,  $676,385.50. 
Claim  filed  August  4,  permission  to  tile  haying  been  granted  by 
Commission  (Min.,  p.  87).     Oral  argument  to  Commission. 


REPOET  OF  ROBERT  C.  MORRIS.  31 

Extension  to  answer  until  September  1  granted  August  25  (Min., 
p.  103). 
Answer  filed  September  1  (Min.,  p.  109). 
Replication  filed  September  2. 
Claim  disallowed  September  18. 
Opinion  by  Commission. 

LIST   OF   DOCUMENTS. 

Memorial;  Answer;  Replication;  Decision  in  English;  Decision  in 
Spanish;  Opinion  in  English;  Opinion  in  Spanish. 

No.  54. 

Claim  of  Elias  A.  de  Lima,  Elias  S.   A.  de  Lima,  Edward  de 
Lima,  Partners  as  D.  A.  de  Lima  &  Co. 

summary  of  proceedings. 

Amount  claimed,  $70,000;  interest,  $10,150. 

Claim  filed  September  1  (Min.,  p.  109).  Oral  presentation.  Brief 
in  support. 

Eiled  with  understanding  that  depositions  now  being  taken  at  Coro 
should  be  presented  to  court  before  September  30,  so  that  time  for 
answer  of  Venezuela  should  run  from  presentation  of  depositions. 

Claim  withdrawn  October  13  (Min.,  p.  141). 

list  of  documents. 

Memorial;  Brief. 

No.  55. 

Claim  of  J.  B.  F.  P.  Monnot.     (No.  2.) 
summary  of  proceedings. 

Amount  claimed,  $637,000. 

Claim  filed  September  18  (Min.,  p.  119). 

Objection  raised  to  filing  by  Commissioner  on  part  of  Venezuela. 
Commissioner  on  part  of  United  States  favored  filing.  Decision  by 
umpire  permitted  the  claim  to  be  filed  on  September  18. 

Answer  filed  November  28  nunc  pro  tunc  as  of  October  7  (Min., 
p.  165). 

Claim  disallowed. 

Opinion  by  Commission. 

LIST   OF   documents. 

Letter  from  claimant  to  United  States  legation;  Letter  from  United 
States  legation  presenting  claim;  Letter  from  United  States  agent  to 
claimant's  representative;  Memorial  and  proofs;  Answer  (nunc  pro 
tunc  as  of  Octo])er  7  entered  on  minutes  of  Novend)er  28).  Decision 
in  English;  Decision  in  Spanish;  Opinion  in  English;  Opinion  in 
Spanisn. 


32  REPORT  OK  KOHEKT  C.  MORRIS. 

I'luMo  ;irt>  iimu'xt'd  hereto  as  \M\vt  of  this  report  copies  of  all  the 
pleatliniis  het'on^  the  Coininissioii,  to,<»etluM"  with  copies  of  all  the  deci- 
sions and  awards  of  the  Coiiiinissioiiers  and  of  the  umpire. 

In  conclusion  I  desire  to  tender  my  most  sincere  thanks  to  yourself 
and  to  all  the  otKcials  and  employees  of  the  Department  of  State  for 
the  cordial  assistance  oiven  me  in  the  prosecution  of  the  work  before 
the  Connuission.  1  also  wish  to  express  luy  appreciation  of  the  assist- 
ance rendered  me  l)y  Hon.  Herbert  W.  Bowen,  envoy  extraordinary 
and  minister  plenipotentiary  of  tiie  United  States  to  Venezuela,  during 
his  presence  at  Caracas,  and  also  of  the  aid  extended  me  by  Hon. 
W.  \V.  Russell,  charge  d'atfaires  ad  interim  of  the  United  States  at 
Caracas,  after  Mr.  Bowen's  departure  on  his  mission  before  The 
Hague  tribunal. 
1  have  the  honor  to  be, 

Very  respectfully,  your  obedient  servant, 

Robert  C.  Morris, 
Agent  of  the  United  States  hefore  the  United  States 

and  Venezuelan  Claims  Commission. 
New  York  City,  May  5,  190 J),. 


V^ENEZXJEL^-CL^IIVIS. 


PROTOCOL  OF  AN  AGREEMENT  BETWEEN  THE  UNITED  STATES 
OF  AMERICA  AND  THE  REPUBLIC  OF  VENEZUELA  FOR  SUBMIS- 
SION TO  ARBITRATION  OF  ALL  UNSETTLED  CLAIMS  AGAINST 
VENEZUELA. 

Signed  at  Washington^  February  17^  1903. 


Protocol  of  an  Agreefment  hetween 
the  Secretary  of  State  of  the 
United  States  of  America  and 
the  Plenipotentiary  of  the  Re- 
iniblic  of  Venezuela  fjr  suhriiis- 
sion  to  arbitration  of  all  imset- 
tled  claims  of  citizens  of  the 
United  States  of  America 
against  the  Pepublic  of  Ven- 
ezuela. 

The  United  States  of  America 
and  the  Republic  of  Venezuela, 
through  their  representatives, 
John  Ha}^  Secretary  of  State  of 
the  United  States  of  America,  and 
Herbert  W.  Bowen,  the  Plenipo- 
tentiary of  the  Republic  of  Vene- 
zuela, have  agreed  upon  and  signed 
the  following  protocol. 

Article  I. 

All  claims  owned  by  citizens 
of  the  United  States  of  America 
against  the  Republic  of  Venezuela 
which  have  not  been  settled  by 
diplomatic  agreement  or  by  arbi- 
tration between  the  two  Govern- 
ments, and  which  shall  have  been 
presented  to  the  commission  hei"e- 
inaftor  named  by  the  Department 
of  State  of  the  United  States  or 
its  Legation  at  Caracas,  shall  be 
examined  and  decided  ])y  a  mixed 
commission,  which  shall  sit  atCara- 
cas,aiid  wliich  shall  consist  of  two 
members,  one  of  whom  is  to  be 
appointed  })y  the  President  of  the 
United  States  and  the  other  by  the 
President  of  Venezuela. 

S.  Doc.  317,  58-2 3 


Protocolo  de  un  Convenio  entre  el 
Secretario  de  Estado  de  los  Es- 
tados  Unidos  de  America  y  el 
Plenipotenciario  de  la  Repuhlica 
de  Venezuela  j^ct'^a  la  suniision  d 
arbitraje  de  todas  las  reclama- 
ciones  pendientes  de  ciudadanos 
de  los  Estados  Unidos  de  Ame- 
rica contra  la  Repuhlica  de  Vene- 
zuela. 

Los  Estados  Unidos  de  America 
y  la  Republica  de  Venezuela,  por 
medio  de  sus  representantes,  John 
Ha}^,  Secretario  de  Estado  de  los 
Estados  Unidos  de  America,  y 
Herbert  W.  Bowen,  Plenipoten- 
ciario  de  la  Republica  de  Venezue- 
la, han  convenido  en  el  siguiente 
protocolo,  que  han  tirmado. 

Articulo  I. 

Todas  las  reclamaciones  posei- 
das  por  ciudadanos  de  los  Estados 
Unidos  de  America  contra  la  Repu- 
blica de  Venezuela,  que  no  hayan 
sido  arregladas  por  la  via  diploma- 
tica  6  por  arl)itraje  entre  los  dos 
Gobiernos,  y  que  hubieren  sido 
presentadas  por  el  Departamento 
de  Estado  de  los  Estados  Unidos  6 
por  su  Legacion  en  Caracas  a  la 
Comision  abajo  mencionada,  seran 
examinadas  y  decididas  por  una 
Comision  Mixta,  quecclebrara  sus 
sesiones  en  Caracas,  y  que  se  com- 
pondra  de  dos  mi(!m])ros,  luio  de 
los  cuales  seni  nombrado  por  el 
Prcsidente  de  los  Estados  Unidos, 
y  el  otro  por  el  Prcsidente  de 
Venezuela. 

33 


34 


REPORT  OF  ROBERT  0.  MORRIS. 


It  is  uiLiiHH'd  that  an  unipirc  may 
1)0  named  by  the  Queen  of  the 
Netherlands.'  If  either  of  said 
t'ommissioners  or  the  umpire 
should  fail  or  eease  to  act,  his 
sueeessor  shall  he  a})pointed  forth- 
with in  the  same  manner  as  his 
])redocessor.  Said  commissioners 
and  umpire  are  to  be  appointed 
before  the  first  day  of  May,  1903. 


The  commissioners  and  the  um- 
l)ire  shall  meet  in  the  city  of  Cara- 
cas on  the  first  day  of  June,  1903. 
The  umpire  shall  preside  over  their 
deliberations,  and  shall  be  compe- 
tent to  decide  any  question  on 
which  the  commissioners  disagree. 
Before  assuming  the  functions  of 
their  office  the  commissioners  and 
the  umpire  shall  take  solemn  oath 
carefully  to  examine  and  impar- 
tially decide,  according  to  justice 
and  the  provisions  of  this  conven- 
tion, all  claims  submitted  to  them, 
and  such  oaths  shall  be  entered  on 
the  record  of  their  proceedings. 
The  commissioners,  or  in  case  of 
their  disagreement,  the  umpire, 
shall  decide  all  claims  upon  a  basis 
of  absolute  equity,  ^Yithout  regard 
to  objections  of  a  technical  nature, 
or  of  the  provisions  of  local  legis- 
lation. 


The  decisions  of  the  commission, 
and  in  the  event  of  their  disagree- 
ment, those  of  the  umpire,  shall 
be  final  and  conclusive.  They 
shall  be  in  writing.  All  awards 
shall  be  made  payable  in  United 
States  gold,  or  its  equivalent  in 
silver. 

Article  II. 


Se  conviene  en  quo  un  tercero  en 
(liscordia  podra  scr  nombrado  por 
la  Reina  de  los  Pafses  Bajos.  Si 
uno  de  dichos  comisionados  6  el 
tercero  en  discordia  dejare  de  ejer- 
cer  sus  funciones,  sera  nom])rado 
en  el  acto  su  succsor  del  mismo 
modo  quo  el  antecesor  de  este. 
Dichos  comisionados  y  tercero  en 
discordia  deben  ser  noml)rados 
antes  del  dia  primero  de  mayo  de 
1903. 

Los  comisionados  y  el  tercero 
on  discordia  so  reuniran  en  la 
ciudad  de  Caracas  el  dia  primero  de 
junio  de  1903.  Ei  tercero  on  dis- 
cordia prosidira  sus  deliberacionos, 
y  tendrafacultad  paradirimir  cual- 
quier  cuestion  sobre  la  quo  no 
puedan  avenirse  los  comisionados. 
Antes  de  empezar  a  ejercer  las 
funciones  de  su  cargo,  los  comisio- 
nados y  el  tercero  en  discordia  pres- 
tanin  solemne  juramento  de  exa- 
minar  con  cuidado,  y  do  decidir 
imparcialmente,  con  arreglo  a  la 
justicia  y  a  las  estipulaciones  de 
esta  convencion,  todas  las  rocla- 
maciones  que  se  les  sometieron,  y 
tales  juramentos  se  asentaran  en 
su  libro  de  actas.  Los  comisio- 
nados, 6  en  caso  de  que  estos  no 
puedan  avenirse,  el  tercero  on  dis- 
cordia decidira  todas  las  reclania- 
cionos  con  arreglo  absoluto  a  la 
equidad,  sin  reparar  on  objeciones 
tecnicas,  ni  en  las  disposiciones  de 
la  legislacion  local. 

Las  decisionos  do  la  comision,  y 
on  caso  de  su  dosavonencia,  las  del 
tercero  en  discordia,  senin  defini- 
tivas  y  concluyentes.  Se  esten- 
deran  por  escrito.  Todas  las  can- 
tidados  falladas  seran  pagaderas 
en  moneda  de  oro  de  los  Estados 
Unidos  6  en  su  oquixalente  en 
plata. 

Articulo  II. 


The  commissioners,  or  umpire,  Los  comisionados  6  el  tercero 
as  the  case  may  be,  shall  invosti-  en  discordia,  sogun  el  caso,  investi- 
gate and  decide  said  claims  upon  garan  y  decidinin  tales  reclama- 
such  evidence  or  information  oidy  clones   con  arreglo  unicamente  a 


REPOET  OF  ROBERT  C.  MORRIS, 


35 


as  shall  be  furnished  by  or  on  be- 
half of  the  respective  Govern- 
ments. They  shall  be  bound  to 
receive  and  consider  all  written 
documents  or  statements  which 
may  be  presented  to  them  by  or 
on  behalf  of  the  respective  Gov- 
ernments in  support  of  or  in 
answer  to  any  claim,  and  to  hear 
oral  or  written  arguments  made 
by  the  Agent  of  each  Government 
on  ever}^  claim.  In  case  of  their 
failure  to  agree  in  opinion  upon 
any  individual  claim,  the  umpire 
shall  decide. 

Every  claim  shall  be  formallj" 
presented  to  the  commissioners 
wnthin  thirty  da3^s  from  the  day 
of  their  first  meeting,  unless  the 
commissioners  or  the  umpire  in 
any  case  extend  the  period  for 
presenting  the  claim  not  exceeding 
three  months  longer.  The  com- 
missioners shall  be  bound  to  ex- 
amine and  decide  upon  every 
claim  within  six  months  from  the 
day  of  its  first  formal  presenta- 
tion, and  in  case  of  their  disagree- 
ment, the  umpire  shall  examine 
and  decide  within  a  corresponding 
period  from  the  date  of  such  disa- 
greement. 


las  pruebas  6  informes  suminis- 
trados  por  los  respectivos  Gobier- 
nos,  6  en  nombre  de  estos.  Ten- 
dran  obligacion  de  recibir  y  consi- 
derar  todos  losdocumentos  6  expo- 
siciones  escritas  que  les  fueren 
presentadas  por  los  respectivos 
Gobiernos,  6  en  su  nombre,  en 
apo}' o  6  en  refutacion  de  cualquie- 
ra  reclamacion,  y  de  oir  los  argu- 
mentos  orales  6  escritos  que  hiciere 
el  agente  de  cada  Gobierno  sobre 
cada  reclamacion.  En  caso  de  que 
dejen  de  avenirse  sus  opiniones 
sobre  cualquiera  reclamacion,  de- 
cidira  el  tercero  en  discordia. 

Cada  reclamacion  se  presentara 
formalmente  Ji  los  comisionados 
dentro  de  treinta  dias  contados 
desde  la  fecha  de  su  primera  reu- 
nion, a  menos  que  los  comisiona- 
dos 6  el  tercero  en  discordia  pro- 
rroguen,  en  algun  caso,  por  un 
termino  que  no  exceda  de  tres 
meses,  el  periodo  concedido  para 
presentar  la  reclamacion.  Los 
comisionados  tendnin  obligacion 
de  examinar  y  decidir  todas  las 
reclamaciones  dentro  de  seis  meses 
contados  desde  el  dia  en  que  hubie- 
ren  sido  formalmente  presentadas 
por  primera  vez,  y  en  caso  de  su 
desavenencia,  examinara  y  decidira 
el  tercero  en  discordia  dentro  de 
un  periodo  correspondicnte  con- 
tado  desde  la  fecha  de  tal  desave- 
nencia. 


Article  III. 

The  commissioners  and  the  um- 
pire «hall  keep  an  accurate  record 
of  their  proceedings.  For  that 
purpose,  each  conunissioncr  shall 
appoint  a  secretary  versed  in  the 
language  of  both  countries,  to 
assist  them  in  the  transaction  of 
the  business  of  the  commission. 
Except  as  herein  stipulated,  all 
questions  of  procedure  shall  be 
left  to  the  determination  of  the 
commission,  or  in  case  of  their 
disagreement,  to  the  umpire. 


Articulo  in. 

Los  comisionados  y  el  tercero 
en  discordia  llcvariin  un  registro 
exacto  de  todas  sus  deliberaciones 
y  acuerdos,  Paraese  objeto,cada 
comisionado  noml)rara  un  secre- 
tario  versado  en  el  idioma  de  cada 
pais  para  que  le  ayude  en  el  des- 
pacho  de  los  negocios  que  pendie- 
ren  ante  la  comision.  Salvo  las 
cstipulaciones  del  presente  proto- 
colo,  toda  cuestion  de  pi'ocedi- 
micnto  se  remitini  a  la  resolucion 
de  la  comision,  6  qn  caso  de  su 
desavenencia,  a  la  del  tercero  en 
discordia. 


3C 


REPORT  OF  ROBERT  C.  MORRIS. 


Article  IV. 

Roasonablo  compensation  to  tlio 
coinniissionors  and  to  the  umpire 
-for  their  serviees  and  expenses, 
and  the  otlier  expenses  of  said 
arbitration,  are  to  be  paid  in  equal 
moieties  bv  the  contracting*  par- 
ties. 

Article  V. 

In  order  to  pay  the  total  amount 
of  the  claims  to  be  adjudicated  as 
aforesaid,  and  other  claims  of  citi- 
zens or  subjects  of  other  nations, 
the  Government  of  Venezuela 
shall  set  apart  for  this  purpose, 
and  alienate  to  no  other  purpose, 
bcii  inning"  with  the  month  of 
March,  1903,  thirty  per  cent,  in 
monthly  payments  of  the  customs 
revenues  of  La  Guaira  and  Puerto 
Cabello,  and  the  payments  thus 
set  aside  shall  be  diyided  and  dis- 
tributed in  conformity  with  the 
decision  of  the  Hague  Tribunal. 

In  case  of  the  failure  to  carry 
out  the  above  agreement,  Belgian 
officials  shall  be  placed  in  charge 
of  the  customs  of  the  two  ports, 
and  shall  administer  them  until 
the  liabilities  of  the  Venezuelan 
(iovernment  in  respect  to  the 
above  claims  shall  have  been  dis- 
charged. The  reference  of  the 
question  above  stated  to  the  Hague 
Tribunal  will  be  the  subject  of  a 
separate  protocol. 

Article  VI. 

All  existing  and  unsatisfied 
awards  in  favor  of  citizens  of  the 
Tnited  States  shall  be  promptly 
paid,  according  to  the  terms  of 
the  respective  aw^ards. 


AUTICULO  IV. 

Una  retribucion  e(]uitatiya  sera 
pagada  |)or  las  partes  contratantes, 
en  pai"tes  iguales,  n.  los  comisio- 
nados  y  al  tercero  en  discordia  por 
sus  servicios  y  gastos,  y  tambien  se 
satisfanin  de  la  misma  manera,  los 
demas  gastos  del  arbitraje. 

Arti'culo  V. 

Con  el  fin  de  pagar  el  importe 
total  de  las  reclamaciones  que  se 
ha3'an  de  decidir  do  la  manera  que 
qucda  dicha,  y  otras  reclamaciones 
de  ciudadanos  6  subditos  de  otros 
Estados,  el  Gobierno  de  Venezue- 
la reservara,  y  no  enajenan'i  para 
ningun  otro  o])jeto  (empezando 
descle  el  mes  de  marzo  de  1903)  un 
treinta  por  ciento,  en  pagos  men- 
suales,  de  las  rentas  aduanales  de 
la  Guaira  y  Puerto  Cabello,  y  el 
dinero  asi  reservado  sera  distri- 
buido  con  arreglo  al  fallo  del  Tri- 
bunal do  la  Haya. 

En  caso  de  que  no  se  cumpla  el 
susodicho  convenio,  empleados 
belgas  quedaran  encargados  del 
cobro  de  los  derechos  de  aduana 
de  am  bos  puertos,  _y  los  adminis- 
tranin  hastaquesehayan  cumplido 
las  obligaciones  del  Gol)ierno  de 
Venezuela  respecto  de  las  referi- 
das  reclamaciones.  I^a  remision 
al  Tribunal  de  la  Haya  de  la  cues- 
tion  arriba  oxpuesta  seni  objeto  de 
un  protocolo  separado. 

Articulo  VI. 

Todas  las  sumas  f alladas  a  favor 
de  ciudadanos  de  los  Estados  Cni- 
dos  que  no  se  hayan  satisfecho, 
seran  pagadas  con  puntualidad, 
conforme  a  las  disposiciones  de 
los  respectivos  fallos. 


Washington,  D.  C,  February  17,  1903. 
John  Hay  [seal] 

Herbert  W.  Bowen.  [seal] 


REPORT   OF    ROBERT    C.   MORRIS.  37 

RULES  OF  THE  COMMISSION. 


The  secretaries  shall  keep  a  docket  and  enter  thereon  a  list  of  all 
claims  as  soon  as  they  shall  be  formally  filed  with  the  Commission. 
They  shall  indorse  the  date  of  tiling-  upon  each  paper  pi-esented  to  the 
Commission  and  enter  a  minute  thereof  in  the  docket.  The  claims 
shall  be  numbered  consecujtively  beginning  with  the  claim  first  pre- 
sented as  No.  1. 

The  caption  of  each  case  shall  be: 

The  United  States  of  America  on  behalf  1 

of ,  claimant.  \^-^^   

The  Republic  of  Venezuela. 


The  secretaries  shall  keep  duplicate  records  of  the  proceedings  had 
before  the  Commission  and  of  the  docket  of  claims  filed  with  the 
Commission,  both  in  English  and  Spanish,  so  that  one  copy  each  shall 
be  supplied  to  each  government. 

II. 

All  claims  must  be  formally  presented  to  the  Commission  within 
thirty  days  from  the  first  day  of  June,  1903,  unless  the  Commissioners 
or  the  umpire  grant  a  further  extension  in  accordance  with  the  pro- 
visions of  paragraph  2  of  Article  II  of  the  protocol. 

III. 

A  claim  shall  be  deemed  to  be  formally  filed  with  the  Commission 
upon  the  presentation  of  the  written  documents  or  statements  in  con- 
nection therewith  to  the  secretaries  of  the  Commission  by  the  agent 
of  the  United  States. 

IV. 

The  Government  of  the  United  States  by  its  agent  shall  have  the 
right  to  file  with  each  claim  at  the  time  of  presentation  a  brief  in 
support  thereof. 

It  shall  not  be  necessary  for  the  Republic  of  Venezuela  in  any  case 
to  dcriv  the  allegations  of  theclaim  or  the  validity  thereof;  but  ageneral 
denial'shall  be  entered  of  record  by  the  secretaries,  as  of  course,  and 
thereby  all  the  material  allegations  of  the  petition  shall  be  considered 
as  put  in  issue. 

The  Republic  of  Venezuela,  however,  by  its  agent,  shall  have  the 
right  to  make  specific  answer  to  each  claim  within  fifteen  days  after 
the  date  of  filing  thereof,  and,  if  it  elects  to  answer,  it  shall,  at  or 
before  the  time  of  making  said  answer  l)y  its  agent,  present  to  the 
Connnission  all  evidence  which  it  intends  to  produce  in  opposition  to 
the  claim.  The  (Tovernmcnt  of  the  United  States,  by  its  agent,  shall 
have  the  right  to  present  evidence  in  rebuttal  within  the  period  in  this 
rule  provided  for  the  filing  of  a  replication. 

The  filing  of  a  brief  on  l)ehaU"  of  the  claimant  Government  and  the 
filing  of  a  brief  on  behalf  of  the  respondent  Government  or  the  failure 


88  REPORT  OF  ROBERT  C.  MORRIS. 

to  s|)iH'itic:illy  aiiswHM'  any  claim  witliin  the  i'uuv  allowed,  as  al)ovo  pro- 
A  itUnL  shall  l>i>  dccinod  to  closo  tlio  profccdiiios  before  the  Coniiiiission 
in  r(^i;ard  to  the  chiini  in  (luestion,  iiidess  the  aj^ent  of  tiie  United 
States  within  two  days  from  the  tiling"  of  a  brief  by  the  respondent 
Government  shall  formally  re()uest  of  the  (yommission,  in  writing,  a 
a  further  period  of  five  days  in  which  to  file  a  replication;  in  which 
event  the  Republic  of  Venezuela  shall,  upon  the  like  recjuest  of  its 
ao-ent,  have  a  like  period  within  which  to  ])ut  in  a  rejoinder,  which 
replication  and  rc^joindm'  siiall  linally  close  the  proceedings. 

V. 

The  petition  or  answer  may  be  amended  at  any  time  before  the  final 
submission  of  any  claim,  as  provided  in  the  preceding  rules,  upon  leave 
granted  by  the  Comnussion. 

VI. 

No  documents  or  statements  or  written  or  oral  argument  will  be 
received  except  such  as  shall  be  furnished  l)y  or  through  the  agents 
of  the  respective  Governments. 

VII. 

The  secretaries  shall  each  keep  a  record  of  the  proceedings  of  the 
Commission  for  each  day  of  its  session  in  both  English  and  Spanish, 
in  books  provided  for  the  purpose,  which  shall  be  read  at  its  next 
meeting,  and  if  no  objection  be  made,  or  when  corrected,  if  correc- 
tion be  needed,  shall  be  approved  and  subscribed  by  the  umpire  and 
Commissioners  and  countersubscribed  by  the  secretaries. 

They  shall  keep  a  notice  book  in  which  entries  ma}^  be  made  by  the 
agent  for  either  Government,  and  when  made  shall  be  notice  to  the 
opposing  agent  and  all  concerned. 

They  shall  provide  duplicate  books  of  printed  forms  under  the 
direction  of  the  Commission,  in  which  shall  })e  recorded  its  several 
awards  or  decisions  signed  by  the  Commissioners,  or,  in  case  of  their 
disagreement,  by  the  umpire,  and  verified  by  the  secretaries. 

They  shall  be  the  custodians  of  the  papers,  documents,  and  books 
of  the  Commission  under  its  direction,  and  shall  keep  the  same  safe 
and  in  methodical  order.  While  aftording  every  reasonable  opportu- 
nity and  facility  to  the  agents  of  the  respective  Governments  to 
inspect  and  make  extracts  from  papers  and  records,  they  shall  permit 
none  to  be  withdrawn  from  the  files  of  the  Connuission,*  except  by  its 
direction  duly  entered  of  record. 

VIII. 

When  an  original  paper  on  file  in  the  archives  of  either  (Govern- 
ment can  not  be  conveniently  Avithdrawn,  a  dul}'  certified  copy  may 
be  received  in  evidence  in  lieu  thereof. 


REPORT  OF  ROBERT  C.  MORRIS.  39 

KEGLAMENTO. 


Los  Secretaries  llevaran  un  registro  y  asentaran  en  el  una  lista  de 
todas  las  reclamaciones  luego  que  hayan  sido  formalmente  presentadas 
a  la  Comision.  En  cada  papel  presentado  a  la  Comision,  anotaran  la 
fecha  de  su  presentacion  y  asentaran  una  minuta  de  el  en  el  registro. 
Las  reclamaciones  se  numeranin  consecutivamente,  erapezando  por  la 
primera  que  se  presente,  que  sera  la  Numero  1. 

El  encabezamiento  de  cada  reclamacion  serJi: 


Los  EsTADos  Unidos  de  America  en  favor 

de ,  Reclamante, 

vs. 
La  Republica  de  Venezuela. 


No. 


Los  secretaries  llevaran  registros  duplicados  de  las  actuaciones  de 
la  Comision  y  de  la  lista  de  las  reclamaciones  presentadas  a  la  Comi- 
sion en  ingles  y  castellano,  de  modo  que  a  cada  Gobierno  se  le  de  un 
ejemplar. 

11. 

Todas  las  reclamaciones  deberan  presentarse  formalmente  a  la  Comi- 
sion, dentro  de  treinta  dias  contados  desde  el  1"  de  Junio  de  1903,  a 
no  ser  que  los  Comisarios  6  el  tercero  en  discordia  concedan  una 
prorroga,  con  arreglo  a  lo  estipulado  en  el  paragrafo  2,  Articulo  II  del 
Protocolo. 

III. 

Se  juzgara  formalmente  presentada  a  la  Comision,  una  reclamacion, 
desde  el  momento  de  la  presentacion  de  los  documentos  6  exposiciones 
por  escrito  conexionadas  con  ella  a  los  secretaries  de  la  Comision  por 
el  agente  de  los  Estados  Unidos. 

IV. 

El  Gobierno  de  los  Estados  Unidos  tendra  el  derecho  de  presentar 
por  medio  de  su  agente  con  cada  reclamacion,  al  tiempo  de  su  presen- 
tacion, un  informe  en  apoyo  de  ella. 

En  ningun  caso  sera  necesario  que  la  liepublica  do  Venezuela  con- 
tradiga  las  alegaciones  de  las  reclamaciones  6  la  validez  de  ellas,  sino 
que  los  secretaries  registraren  de  oticio,  come  es  debido,  una  centra- 
diccion  en  termines  gencrales,  y  con  esto  se  censideraran  centradichas 
todas  las  alegaciones  matei-ialc^  de  la  peticion. 

No  obstante,  la  Republica  do  Venezuela  tendra  el  derecho  do  centestar 
especificadamente,  per  medio  de  su  agente,  a  cada  reclamacion  dentro 
de  quince  dias  despues  de  la  fecha  de  su  pi-esentacien;  y  si  ella  opta 
por  centestar,  pre^entarJi  a  la  Comision,  antes  6  al  tiempo  de  la  dicha 
contestacion,  por  medio  de  su  agente,  todas  las  ])ruebas  (|ue  se  pro- 
ponga  producir  en  eposicion  a  la  reclamacion.  El  Gol)ierno  de  los 
Estados  Unidos  tendi-a  el  dere(;hode  presentar,  per  medio  do  su  agente, 
pruebas  on  refutacien,  dentro  del  periode  previste  en  esta  r(\gla,  pai-a 
la  presentacion  de  una  replica. 


40  REPORT  OF  ROBERT  C.   MORRIS. 

L:i  ])ivsont;K'i6n  cU'  uii  itii'onuo  sumario  en  t'axor  del  ()lo])ierno  rccla- 
inantt\  y  la  pirsiMitacioii  de  un  iiit'oniic  suniario  on  favor  dol  Gohicrno 
domaiulado,  :i  la  falta  de  contestacion  ospeciliea  a  cuahiuior  roclania- 
oion,  doiitro  del  tormiiio  roiiccdido,  seoun  ([ui'da  provisto,  so  rrputaia 
como  c'lausura  did  procodiniicMito  ante  la  Comision,  con  n^spccto  a  la 
rccdaniai'ion  de  (pie  so  trate,  a  luenos  ([uc  el  ag-entc  de  los  E.stado.s  Unido.s, 
deiitro  de  dos  dias  contado.s  desdc  la  presentaeion  de  un  inforine  sunia- 
rio por  el  Gobierno  deniandado,  plda  forniahnentc  a  la  Comision,  por 
esorito,  un  nuevo  terniino  de  cinco  dias.  para  presentar  una  replica 
dentro  de  el,  caso  en  el  cual  la  Republica  do  Venezuela  tendra  lui 
tormino  i<^'ual,  a  ig-ual  solicitud  de  su  aoente,  para  presentar  una  contra- 
roplica,  replica  3'  contra-replica  (|uc  tcrniinaran  detinitivamonte  el 
proccdimiento. 

V. 

Toda  peticion  6  contestacion  podra  ser  modiiieada  en  cualquier 
tienipo  antes  do  ser  detinitivamente  sometido  cual(|uier  reclamo,  ,sej>-un 
queda  dispuesto  en  los  articulos  anteriores,  y  previo  permiso  conce- 
dido  por  la  Comision. 

VI. 

No  se  recibiran  documentosio  exposiciones  6  argumentos  escritos  n 
orales,  sino  los  que  se  presenten  por  los  agentes  de  los  respectivos 
Gobiernos,  6  por  medio  de  ellos. 

Vll. 

Cada  secretario  llevani  un  registro  de  las  actuaciones  de  la  Comi- 
sion, con  la  minuta  de  cada  sesi(Sn,  en  ingles  y  en  castellano,  en  libros 
apropiados  para  ese  tin,  los  cuales  scran  leidos  en  la  proxima  reunion, 
y  si  no  se  hiciera  observacion  alguna,  6  una  vez  corregidos,  cuando 
fuere  necesario,  seran  aprobados  y  tirmados  por  el  tercero  en  discordia 
3'  los  Comisarios,  3^  ret'rendados  por  los  secretaries. 

Llevaran  un  libro  de  notificaciones,  en  el  cual  podni  hacer  asientos 
el  agente  de  uno  li  oti'o  Gobierno,  asientos  quo,  al  ser  hochos,  se  consi- 
deraran  como  notificaciones  al  agente  opositor  y  demtis  interesados. 

Llevaran  dos  libros  de  esqueletos  impresos,  bajo  la  direccion  de  la 
Comision,  en  los  cuales  se  asentanin  los  diversos  t'allos  6  decisiones  de 
la  Comision,  tirmados  por  los  Comisarios,  6  en  caso  de  un  desacuerdo, 
por  el  tercero  en  discordia,  3'  refrendados  por  los  secrotarios.  Custo- 
diaran  los  papelos,  documentos  y  libros  do  la  Comision,  bajo  la  direc- 
cion de  esta,  3^  los  guardaran  en  lugar  seguro  3^  con  orden  metodico. 
crindaran  a  los  agentes  do  los  respectivos  Gobiernos,  todas  las  opor- 
tunidados  y  facilidades  racionales,  para  examinar  los  papeles  3"  regis- 
tros  y  hacer  extractos  do  ellos;  poro  no  permitiran  que  se  extraiga 
nada  do  los  archivos  de  la  Comision,  sin  orden  de  esta,  debidamente 
rogisti-ada. 

VJll. 

Cuando  un  documento  existente  en  los  archivos  de  uno  li  otro 
Gobierno  no  pueda  obtenerse  original  convonientomento,  podra  acep- 
tarse  como  pruoba,  en  lugar  de  el,  una  copia  debidamente  certificada. 


KEPORT    OF    ROBERT    C.   MORRIS.  41 

ADDRESS  OF  ROBERT  C.  MORRIS,  AGENT  OF  THE  UNITED  STATES, 
BEFORE  THE  UNITED  STATES  AND  VENEZUELAN  MIXED  COM- 
MISSION AT  THE  SESSION  OF  JUNE  4,  1903. 

To  the  Mixed  Couimisswn,  organized  under  the  protocol  of  Fehrvary  17 , 
1903,  between  the  United  States  of  Ain erica  and  the  RepuUic  of 
Venezuela. 
Your  Honors:  We  are  met  here  to-da}^  for  the  arbitration  of  cer- 
tain fhiim.s  of  citizens  of  the  United  States  against  the  Republic  of 
Venezuehi.  The  proceedino',  therefore,  is  one  of  great  dignity  and 
importance.  It  is  a  transaction  eminent!}'  American.  The  South 
American  Republics  and  the  United  States  have  many  grounds  of 
mutual  affection  and  esteem,  but  none  more  significant  than  their  adhe- 
sion to  the  principle  of  arbitration.  It  is  a  way  that  we  have  always 
taken  to  settle  any  differences  which  may  have  temporarily  arisen 
to  ruffle  our  uniformlv  harmonious  and  neighborly  relations.  The 
Republic  of  Venezuela^  especially,  has  always'been  a  champion  of  this 
essentially  American  way  of  doing  things.  And  this  proceeding  is 
arbitration  of  a  particularly  friendly  and  informal  kind.^  This  Com- 
mission will  not  have  to  decide  any  new  or  grand  principle  of  inter- 
national law.  It  will  simply  endeavor  to  administer  justice.  As  I  see 
it,  this  is  a  meeting  of  high-minded  gentlemen— an  international  court 
of  honor,  if  you  will— who  are  more  interested  in  facts  than  in  argu- 
ment, and  who  wnll  be  guided  more  by  sober  conviction  than  by  legal 
abstractions.  The  protocol  itself  contemplates  this.  It  prescribes, 
in  so  many  words,  that  all  claims  shall  be  decided  "upon  a  l)asis  of 
absolute  equitv,  without  regard  to  objections  of  a  technical  nature, 
or  of  the  provisions  of  local  legislation."  There  will,  therefore,  be 
no  vain  quit)blings.  There  will  simply  be  an  endeavor  to  ascertain 
whether  the  claims  which  I  shall  present  have  an  adequate  basis  in  fact 
and  in  justice.  I  think  your  honorable  body  is  to  be  congratulated 
that  its  work  is  thus  made  simple  and  informal.  I  think  that  the  two 
Governments  are  to  be  congratulated  in  that  they  are  able  to  come 
together  upon  the  basis  of  this  most  excellent  protocol. 

The  pr(>sent  Commission  is  the  result  of  much  negotiation  which 
terminated  in  the  protocol  signed  in  Washington  the  17th  day  of 
February  last.  Many  of  the  claims  which  1  shall  present  are  of  long 
standing"^  Indeed,  some  of  the  claimants  or  their  representatives  have 
been  compelled  to  w'ait  a  lifetime  for  justice.  This  is  not  said  in  any 
spirit  of  criticism,  or  to  lay  blame  for  it  upon  either  country.  The 
claimants  are  rather,  as  I  see  it,  the  victims  of  unfortunate  circum- 
stances, for  which  each  Government  must  bear  its  just  share  of 
responsibility. 

Prior  to  186G  many  claims  were  presented  by  citizens  of  the  United 
States  to  the  Government  at  Washington  for  pi-osecution  against 
.  Venezuela.  The  United  States  satisfied  itself  of  the  justice  of  some 
forty-nine  of  these  claims,  aggregating  nearly  five  millions  of  dollars. 
The"  two  countries  entered  into  negotiations  which  terminated  in  a 
convention,  signed  in  1800,  creating  a  mixed  claims  commission.  This 
commission  was  organized  similarly  to  the  present  Commission.  One 
Commissioner  was  appointed  by  the  United  States,  another  Commis- 
sioner by  the  Republic  of  Venezuela,  and  the  third  by  the  Russian 
minister  at  Washington.  This  commission  met  here  1n  Caracas  in 
August,  1867,  and  sat  until  August,  1868.  It  made  awards  aggrega- 
ting ^1,253,310.30. 


42  KKPOKT    OF    ROBERT    C.    MORRIS. 

Followint^-  th(^s(>  iiwurds  ciuno  one  of  the  most  ntifortuiiiito  oxperi- 
eiu'os  in  (liploniatic  history.  The  Venezuehin  (iovernnient,  supported 
hy  in:inv  i-itiz(Mis  of  the  United  States,  iin})(^iiched  the  :iwtirds  on  the 
oround  of  fraud.  It  was  asserted  that  the  conunission  A\as  corrupt; 
that  tiiere  had  existed  a  conspiracy  to  defraud  the  Venezuelan  (Toyern- 
iiient  and  its  creditors,  and  that,  therefore,  the  findings  of  the;  com- 
mission should  be  set  aside.  This  formed  the  basis  of -a  disagreement 
which  lasted  for  nearly  a  quarter  of  a  century.  It  was  the  subject  of 
frequent  debate  in  the  Congress  of  the  United  States;  it  figured  in 
Presidential  messages,  in  public  discussions,  and  in  protracted  diplo- 
matic correspondence  l)etween  the  two  Goyernments. 

After  much  delicate  negotiation,  a  conyention  w^as  (inally  entered 
into  between  the  Venezuelan  representatiye  at  Washington  and  the 
Secretary  of  State  of  the  United  States  creating  a  new  claims  commis- 
sion. The  ratifications  were  finally  exchanged  on  the  3d  day  of  June, 
1889,  and  the  conunission  sat  at  Washington  from  the  following  Sep- 
tember until  September,  1890.  It  was  more  fortunate  than  its  pred- 
ecessor, in  that  its  awards  were  cheerfully  adopted  by  both  countries. 

The  commission  of  1890,  however,  was  simply  a  rehearing  commis- 
sion. The  conyention  provided  that  the  commissioners  should  hear 
and  determine  all  claims  which,  by  the  terms  of  the  conyention  of  18(30, 
were  proper  to  be  presented  to  the  mixed  commission  organized  under 
that  convention.  This  limitation  explains  to  some  extent  why  many 
of  the  claims  w^hich  I  shall  present  antedate  the  commission  of  1890. 
Moreover,  there  are  some  claims  to  be  presented  to  this  commis- 
sion which  arose  prior  to  the  commission  of  1867-68,  but  were  not 
presented  to  it.  There  is,  however,  no  limitation  upon  the  present 
Commission.  Under  the  terms  of  the  protocol  we  are  permitted  to 
present  all  claims  owned  by  citizens  of  the  United  States.  We  shall 
take  full  advantage  of  this,  but  w^e  shall  present  no  claim  of  the  justice 
of  which  we  are  not  thorougl}^  convinced. 

In  conclusion,  let  me  say,  we  feel  confident  that  the  result  of  this 
proceeding  will  tend  to  knit  still  more  closely  the  bonds  of  esteem  and 
respect  uniting  our  two  countries,  and  will  add  still  further  to  the 
dignity  of  that  great  principle  of  arbitration  for  wdiich  both  of  our 
Goyernments  stand. 


ADDRESS  OF  SENOR  DR.  F.  ARROYO  PAREJO,  THE  AGENT  OF  THE 
REPUBLIC  OF  VENEZUELA,  BEFORE  THE  UNITED  STATES  AND 
VENEZUELAN  MIXED  COMMISSION  AT  THE  SESSION  OF  JUNE 
9,  1903. 

[Translation.] 

Your  Honors:  1  deem  it  a  happy  occasion  which  permits  me* to 
reply  to  the  views  and  sentiments  expressed  so  eloquently  by  the 
honorable  agent  of  the  United  States  of  North  America  in  the  address 
which  lie  delivered  at  the  last  session. 

Equally  with  him,  I  believe,  with  all  sincerity,  that  the  establish- 
ment of  this  trit)unal  constitutes,  al)ove  all,  the  solemn  recognition  of 
a  principle  in  which  are  linked  the  dignity,  the  honor,  and  the  impor- 
tant interests  of  the  several  political  entities  called  nations;  a  principle 
Venezuela  has  advocated  with  continued  effort  from  the  moment  in 
which  she  entered  into  independent  existence  and  which,  dating  from 
the  \'ear  1861,  is  found  among  her  fundamental  canons. 

The  theory  of  arbitration  as  a  method  of  settling  the  differences 
arising  between  nations  represents  Avithout  doubt  one  of  the  most 


REPORT  OF  ROBERT  C.  MORRIS.  43 

important  advancements  of  the  present  age,  which  with  justice  i)rides 
itself  on  having  uplifted  humanit3\  And  it  is  undeniable,  your  honors, 
and  1  am  pleased  to  freely  admit  it,  that  in  the  labor  for  its  definite 
recognition — which  is  in  tlie  highest  degree  a  labor  of  civilization  and 
a  fruitful  advocacy  for  betterment — the  noble  American  nation  has 
always  been  a  most  fervent  and  decided  champion. 

The  clear  demonstration  of  the  resulting  benelits  which  this  doctrine 
should  bring  to  nations,  Venezuela  hopes  for  from  you.  A  thousand 
complex  causes,  which  it  Avolild  be  inconsiderate  to  enumerate  here, 
might  have  led  her  to  a  state  which,  though  painful  to  patriotism,  will 
never  affect  the  dignity  of  the  nation,  inasmuch  as,  if  obligations  exist 
which  until  now  she  has  involuntarily  been  unable  to  satisfy,  she  here- 
upon accepts  and  will  always  accept  the  consequent  responsibilities, 
whatever  they  may  ])e.  This  present  Commission,  in  which  we  are 
taking  part,  is  a  plain  confirmation  of  this  assertion.  She  confides  as 
firmly  in  the  efficacy  of  the  principle  enunciated  as  in  3'our  unques- 
tionable probity. 

In  the  present  instance  the  discharge  of  the  trust  confided  to  you 
is  of  easier  fulfillment  than  is  often  the  case.  Since  these  commissions 
were  instituted  for  an  ol)ject  eminently  conciliator3\  their  respective 
framers  have  not  desired  ito  impose  upon  you  the  vexatious  and  com- 
plicated procedure  of  ordinary  judgments,  nor  to  subject  your  awards 
to  the  inflexible  rules  of  determined  statutory  legislation.  A  broad 
conception  of  equity  ought  alone  to  inspire  your  decisions.  They  are, 
therefore,  as  the  honorable  American  agent  has  stated  with  so  much 
truth,  veritable  international  courts  of  honor  which  shall  proceed  with 
full  liberty  as  well  in  the  ascertainment  of  facts  as  in  the  application 
of  law. 

I  also  share  in  the  opinion  which  he  has  alread}-  expressed,  that  the 
respective  Governments  will  have  more  than  one  cause  of  satisfaction 
for  having  arrived  at  such  an  agreement. 

I  would  have  nothing  to  take  exception  to  in  the  brilliant  oral  expo- 
sition to  which  I  have  just  referred,  if  it  were  not  that,  at  its  close, 
there  is  a  contention  to  which,  in  the  fulfillment  of  the  special  instruc- 
tions which  I  have  received  from  my  Government,  I  must  now  make 
formal  protest.  After  a  succinct  and  exact  review  of  the  mixed  com- 
missions which  have  met  heretofore  for  the  settlement  of  claims  pend- 
ing between  the  two  countries,  the  Hon.  Mr.  Morris  announces  that 
he  will  present  claims  of  American  citizens,  founded  on  facts  antedat- 
ing the  commission  of  1867-68,  but  which  w^ere  not  submitted  to  that 
connnission. 

The  honora))le  arbitrators  will  observe  that  even  if  the  protocol  last 
signed  in  Washington  permits  the  presentation  of  and  authorizes  this 
commission  to  take  cognizance  of  and  decide  every  claim  owned  by 
American  citizens,  such  stipulation  nmst  be  limited  not  only  in  rigor 
of  law,  but  also  e<|uita])ly  and  logically,  to  those  (claims)  which  are 
su]>se(juent  to  the  year  186.S,  since  the  high  contracting  parties  were 
not  unawiirc  that  Arficlc  V  of  the  convention  of  1866  fixes  a  fatal 
delay  for  the  presentation  of  claims  prior  to  that  year. 

The  article  aforesaid  states  literally: 

The  cU'cipions  of  this  rommisKion  and  tlinpc  of  tlie  umpire  f^liall  bo  final  and  con- 
clusive as  to  all  i)endint,'  clainis  at  the  date  nf  their  iiistallation.  (!UMma  which  shall 
not  be  presented  within  the  twelve  months  herein  prescribed  will  be  disregarded  by 
both  Governmenta  and  considered  invalid. 


44  REPOKT  OF  UOHKRT  ('.  MoRUIS. 

It  would  l)r  of  lu)  a\:iil  (o  allcyc  thai  (lie  awaixls  of  (lu»  coniinissioii 
of  18()7-r»8  \V(Mo  iinpeaclunl  on  account  of  fraud — an  accusalion  wiiich 
Avas  proved  and  rocoonizcd  as  true  b}-  l)oth  parties — because  onl}'  the 
decisions  rendered  by  that  coniniission  were  dechired  null,  and  in  no 
manner  the  provisions  of  the  convention  of  1860.  These  provisions 
were  revived  specifically  by  Article  I  of  the  treaty  of  1889,  which 
created  the  revisory  couniiission  of  1890. 

If,  then,  the  claims  not  presented  within  the  period  fixed  by  the 
convention  of  18(>()  have  been  barred  by  the  application  of  the  law 
cited,  with  what  right  could  they  now  l)e  revived  and  su])niitted  to 
the  examination  of  this  Commission? 

I  deem  the  point  discussed  of  such  great  importance  that  I  venture 
to  respectfully  pray  the  tribunal  to  settle  it  as  a  preliminary  (piestion, 
and  I  close  wishing  j^our  honored  members  the  greatest  success  in  3'our 
deliberations. 

F.  Arroyo  Parkjo. 


PLEADINGS  AND  DECISIONS. 


Before  the  Mixed  Commission, organized  imder  the  protocol  of  Febru- 

ar}^  17.  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  Umted  States  or  America  ox  behalf^ 
of  Ford  Dix,  claimant, 

V. 

The  REruBLic  of  Venezuela. 


^No.  1. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

STATEMENT   OF    FACT. 

The  United  States  presents  in  this  case  a  claim  on  behalf  of  Mr. 
Ford  Dix  in  the  amount  of  $21,295.50,  and  there  is  laid  before  the 
Commission  the  memorial  of  Mr.  Dix,  together  with  the  documentary 
and  other  evidence  on  which  his  claim  is  based.  This  claim,  as  pre- 
sented to  the  United  States  by  Mr.  Dix,  was  for  a  much  larger  amount 
and  based  partially  upon  injuries  other  than  those  included  in  the  claim 
now  presented.  Under  the  well-esta)>lished  procedure  in  such  cases 
the  Government  of  the  United  States  has  iirst  endeavored  to  ascertain 
the  proper  amount  in  which  this  and  every  other  claim  should  be  pre- 
sented, and  has  therefore  with  the  consent  of  Mr.  Dix  (see  his  letter 
of  Noveml)er  21>,  1900),  presented  this  claim  only  in  the  amount  above 
stated  and  for  the  following  items  among  those  specified,  in  the  memo- 
rial of  Mr.  Dix: 

T.o.sH  of  3o4  head  of  beef  cattle,  at  $30  ( Venezuelan) $10,  620.  00 

Loss  of  3SS  head  of  beef  cattle,  at  $11  (difference  between  price  obtained 
by  Di.x  and  that  conceded  by  the  Venezuelan  otticials  to  have  been 

their  worth) 4,268.00 

Loss  of  5,5  cattle  (unsubstantiated  by  any  written  statement),  at  $30  per 

head / 1,  650.  00 

Loss  of  other  cattle  and  ranch  animals 1,  320.  00 

Amount  i)aid  for  nonfulfillment  of  contract  with  Havana  firm 2,  437.  50 

Expenses 1 ,  000.  00 

Total 21,  295.  -50 

The  facts  with  reference  to  these  claims  are  ))riefiy  as  follows: 
Mr.  Ford  Dix,  who  is  a  native-born  citizen  of  the  United  States, 
embarked  in  tin;  business  of  cattle  raising  for  the  market  in  Venezuela 
some  time  shoi-tly  pi'ior  to  flune,  1.S91I,  and  in  flune,  1S99,  made  a  con- 
tract with  the  lirm  of  Salmon  &  Wood  row,  of  Ilabana,  to  furnish  them 
with  a  stipulated  numbei-  of  fat  beeves  at  an  agreed  price  of  $50 
United  States  money,  per  head.  In  September,  1S99,  a  larger  number 
of  cattle  were  taken  from  Mr.  Dix's  plantation  by  the  troops  of  the 

45 


46  "  REPORT    OF    K01?ERr    O.    MORRIS. 

revolution  lod  by  Gen.  Cipriano  Castro.  For  35-i  head  of  cattle  so 
taken  reeeipts  were  given  l)y  the  Venezuelan  authorities,  settinj^  forth 
that  the  cattle  taken  were  worth  not  less  than  ^30  per  head;  3SS  other 
cattle  were  thereupon  sold  l\y  Mr.  Dix  at  the  price  of  $Ii)  per  head,  a 
loss  of  ^U  each,  this  forced  sale  beino-  made  necessary  to  ])re\ent  the 
destruction  and  loss  of  the  balance  of  tlu^  herd,  Mr.  Dix  havino- already 
been  unal)le  to  ol)tain  nx-eipts  from  th(>  (xONernment  for  65  cattle  and 
other  ranch  animals  taken  l)v  the  revolutionary  troops.  By  this  taking 
of  Mr.  Dix's  ])roperty  by  the  Venezuelan  authorities,  Mr.  Dix  was 
unable  to  till  his  contract  with  the  firm  in  Habana,  ajid  was  obiio-ed  to 
pay  them  ^2,437. 50  damages  for  such  breach.  There  is  further  inserted 
a  claim  by  Mr.  Dix  for  $1,000  for  personal  expense  to  which  he  was 
put  by  these  acts  of  the  Venezuelan  authorities. 

These  claims  were  submitted  to  the  Venezuelan  Government  by  the 
United  States  of  America  for  settlement.  The  Government  of  Vene- 
zuela, as  appears  from  the  diplomatic  correspondence  which  is  also 
submitted,  did  not  in  any  way  contest  the  correctness  of  these  claims, 
either  in  their  amount  or  as  to  the  liability  of  the  Government  there- 
for, l)ut  objected  solely  upon  the  ground  that  the  claimant  had  not 
proceeded  to  prove  his  claim  in  accordance  with  the  local  laws  of  the 
Republic  of  Venezuela. 

11. 

The  evidence  submitted  suHtainfi  Mr.  Dix's  claim  to  the  full  amovvtof 
$21,^95.50. 

The  evidence  as  to  the  cattle  taken  by  the  revolutionary^  troops,  both 
as  to  the  number  and  as  to  the  value,  is  documentary,  and  can  not  admit 
of  dispute.  The  same  is  true  as  to  the  price  for  which  the  other  cattle 
were  sold  and  the  resultant  loss,  and  also  as  to  the  amount  of  damages 
paid  for  breach  of  contract.  The  other  claims  are  supported  by  the 
sworn  statements  of  Mr.  Dix.  They  are  supported,  moreover,  by  all 
the  circumstances  of  the  case.  The  fact  that  cattle  were  taken  by  the 
revolutionary  troops  must  be  conceded,  as  well  as  the  fact  that  Mr.  Dix 
succeeded  in  obtaining  the  receipts  which  are  ottered  in  evidence  only 
after  great  difficulty  and  considerable  lapse  of  time.  These  circum- 
stances make  the  probability  of  other  cattle  having  been  taken  so  strong 
that  his  direct  and  positive  statement  is  amply  supported  by  this  pre- 
sumption of  probability. 

The  rules  both  as  to  character  and  weight  of  evidence  are  very 
different  upon  a  hearing  before  a  tribunal  such  as  this  than  the  rules 
of  e\'idence  in  use  under  any  particular  system  of  nuuiicipal  law. 
This  distinction  has  been  very  clearly  recognized.  See,  among  others, 
(  aldera  cases,  15  Court  of  Olaims  Reports,  54(),  in  which  case  Judge 
J.  C.  l^ancroft  Davis,  speaking  of  the  procedure  proper  to  be  observed 
by  the  Court  of  Claims,  as  well  as  by  the  board  of  commissioners,  said: 

In  the  means  by  which  justice  is  to  be  attained,  the  (lourt  is  freed  from  the  tech- 
nical rules  of  evidence  imposed  by  the  common  law,  and  is  permitted  to  ascertain 
truth  by  ;)ny  metliiid  which  produces  moral  conviction.  This  proposition  is  self- 
evident.  The  restraints  which  nuuiicipal  law  imposes  upon  the  taking  and  use  of 
evidence  vary  greatly  in  different  countries.  In  its  broadest  sense  the  word  evidence 
includes  all  means  by  which  any  alleged  fact,  the  truth  of  whicli  is  submitted  to 
examination,  may  be  e.stal)lishcd  or  disproved.  (  1  Green.  Fa\,  sec.  1.)  If  it  were 
necessary  to  justify  the  granting  of  such  wide  jiowers  to  tlie  commissioners  it  would 
be  ea.sy  to  do  so.  International  tribunals  always  exercise  great  latitude  in  such 
matters  (Meade's  case,  2  Ct.  Claims,  R.,  271),  and  give  to  affidavits,  and  sometimes 
even  to  unverified  statements,  the  force  of  depositions. 


REPOKT  OF  ROBERT  C.  MORRIS.  47 

Article  II  of  the  protocol  under  which  this  Commission  was  formed 
moreover  expressly  extends  the  consideration  of  the  Commissioners 
to  any  documents  or  statements  which  may  be  presented  to  them  by 
or  on  behalf  of  the  respective  Governments. 

Under  these  rules  the  evidence  in  this  case  is  ample  to  support  Mr. 
Dix's  claim  to  the  full  sum  of  $21,295.50. 

III. 

The  Venezuelan  Govermnent  is  responsible  for  the  full  amount  of  this 
claim. 

It  is  too  well  settled  as  a  principle  of  international  law  to  need  dis- 
cussion that  in  case  of  a  successful  revolution  the  revolutionary  gov- 
ernment may  be  regarded  as  a  de  facto  government  even  before  it 
actually  succeeds  in  establishing  itself  in  the  government.  See  the 
cases  cited  in  Moore's  International  Arbiti'ation,  pages  2972  et  seq. 

So  far  as  concerns  the  cattle  taken,  for  which  receipts  have  been 
given,  this  liability  has  been  recognized  by  the  Venezuelan  authorities, 
and  their  liability  for  this  part  of  the  claim  can  not  be  disputed. 
There  can  be  no  doul)t  that  the  Venezuelan  Gov^ernment  is  also  respon- 
sible for  the  other  claims.  So  far  as  the  other  cattle  and  ranch  ani- 
mals taken  are  concerned  this  is  apparent.  So  far  as  concerns  the  loss 
of  388  head  of  cattle  sold  at  a  sacrifice  and  the  damages  paid  for  breach 
of  contract,  there  can  l)e  no  question  that  they  were  the  direct,  imme- 
diate, and  natural  result  of  the  acts  of  the  revolutionary  troops  in 
taking  the  cattle  of  Mr.  Dix,  and  hence  results  for  which  the  Venezu- 
elan Government  is  ecjually  responsible.  The  claim  of  $1,000  for  extra 
expenses  to  which  Mr.  Dix  was  put  in  this  connection  is 'also  a  matter 
for  which  the  Venezuelan  Government  should  be  held  responsible. 
It  is  and  must  be  apparent  from  the  facts  of  this  case  that  the  claim 
of  a  thousand  dollars  is  a  very  reasonable  estimate  of  the  extraordi- 
nary expense  to  which  Mr.  Dix  must  have  been  put  by  the  wrongful 
acts  complained  of. 

IV. 

The  correctness  of  tite  claim  of  J\fr.  Ford  Dix  and  its  liability  there- 
for ha/ve  heen  practically  conceded  hy  the  Yenezuelan  Governm£nt. 

This  claim  was  the  subject  of  diplomatic  correspondence  between 
the  (Jovernment  of  the  United  States  of  America  and  that  of  the 
Republic  of  Venezuela  in  which  the  claim  in  its  present  condition, 
with  all  documentary  matter,  was  submitted  to  the  (lovernnient  of 
Venezuela  For  settlement.  The  rei)ly  of  the  Government  of  Venezuela 
to  the  representati\'('  of  the  (lOvei-inncMit  of  the  United  States  can  be 
regarded  in  this  case  and  in  all  similar  cases  asequivalent  to  an  answer 
on  behalf  of  the  Venezuelan  Government  and  as  an  admission  of  all 
the  facts  vdiivh  are  not  expressly  controi'erted.  It  is  true  that  in  the 
reply  in  this  particular  case  the  Venezuelan  Government  makes  use 
of  the  ex|))-ession  "that  it  does  not  attem])t  to  decide  as  to  the  legiti- 
macy of  the  (;laini,'"'  l)ut  the  fact  remains  that  it  does  not  dispute  the 
truth  of  any  of  the  facts  s(»t  forth,  the  correctness  of  the  amount 
claimed   nor  its  own  liability  theret'oi 


)r 


-S  REPORT  OF  ROBERT  C.  MORRIS. 


The  position  of  the  Venezuelan  Government  that  this  claltn  shovld 
haveheen  snhiiiltted  to  Its  hxutl  ti'lhu7iaJs  for  (uljudlcatlon  is  not  'well 
founded. 

"Without  in  any  avu}'  controverting-  tlio  truth  of  any  of  the  state- 
nuMits  on  which  this  chiini  is  based  or  the  correctness  of  the  amount 
chiiuied  or  its  own  liability  therefor,  the  authorities  of  the  Republic 
of  Venezuela  contended  merely  that  the  Government  of  the  United 
States  ouo'ht  not  to  intervene  because  the  claimant  had  a  proper  and 
sufficient  remedy  in  the  local  tribunals  of  that  country.  This  position 
of  the  Republic  of  Venezuela  was  wholly  untenable.  The  cases  in 
which  one  State  has  the  right  to  intervene  to  protect  the  rights  of  its 
citizens  resident  or  temporarily  within  the  domain  of  another  State 
fall  into  two  general  classes.  The  first,  cases  in  which  the  citizen  has 
received  positive  maltreatment  at  the  hands  of  the  foi'eign  government 
or  those  for  whom  it  is  directly  responsible.  The  second,  cases  in 
-Nvhich  the  citizen  has  been  denied  ordinary  justice  in  the  foreign 
countr3\  In  this  latter  class  a  distinction  again  is  to  be  made  ))etw^een 
cases  of  a  denial  of  justice  in  actions  against  the  foreign  government 
as  such  and  those  in  which  there  is  a  denial  of  justice  in  suits  between 
individuals  to  such  an  extent  that  the  foreign  government  may  be 
held  responsible. 

The  right  of  intervention  in  the  first  class  of  cases  is  direct  and 
immediate  and  there  is  no  necessity  for  resort  to  local  tribunals  as  a 
condition  precedent  to  an  application  to  the  home  Government. 

The  wrongs  here  complained  of  arising  from  the  taking  of  cattle 
and  property  "bv  the  troops  of  the  revolutionary  party,  that  has  since 
))een  established  as  the  government  of  the  country,  makes  the  case 
clearly  one  of  the  first  class,  nor  does  the  fact  that  the  Venezuelan 
Government  has  recognized  in  writing  part  of  the  claim  in  an}^  way 
alter  this  fact. 

Even  if  w^e  w^ere  to  concede  that  the  claims  were  of  such  a  character  as 
ought  to  be  first  submitted  before  a  local  tribunal  for  adjudication,  yet 
the  Republic  of  Venezuela  is  not  in  a  position  to  call  for  such  submis- 
sion. The  decree  of  1873  establishing  a  high  federal  court,  before  which 
all  claims  against  the  Government  must  be  adjudicated,  contains  pro- 
visions which  make  the  latter  procedure  practicalh^  a  denial  of  justice. 
It  is  provided  in  substance  in  that  decree  that  should  it  clearl}'  appear 
that  an}'  claimant  has  exaggerated  the  injuries  suffered  by  him,  he 
shall  lose  whatever  right  he  may  have  had,  and  incur  a  fine  of  from 
500  to  3,000  venezolanos  ($500  to  $3,000)  or  imprisonment  from  six  to 
twent3"-four  months. 

The  letter  of  the  Venezuelan  authorities  in  citing  the  rendition  of 
this  decree  preceded  it  with  the  statement  that  in  1869  a  report  was  made 
to  the  Venezuelan  Congress  that  the  revenues  of  the  country  were 
being  consumed  in  the  payment  of  foreign  claims  and  calling  upon 
Congress  for  some  remedy  in  the  situation.  This  connection  makes  it, 
upoji  their  own  statement,  manifest  that  this  decree  was  devised  in  its 
present  form  as  an  express  means  of  preventing  foreigners  from  insti- 
tuting or  prosecuting  claims  against  tlie  Venezuelan  Government. 
This  was  its  origin  and  spirit,  and  such  has  been  its  manifest  efi'ect. 


REPOKT  OB^  ROBERT  C.  MORRIS.  49 

It  would  be  useless  to  discuss  this  situation  further.  It  is  clear  that 
a  court  so  established  and  the  right  of  appeal,  to  which  it  was  coupled 
with  such  restrictions,  can  not  be  compared  either  to  the  Court  of 
Claims  of  the  United  States  or  to  any  other  judicial  tribunal  to  w  hich 
it  has  been  held  that  claims  of  foreigners,  as  well  as  domestic  citizens, 
should  lirst  be  submitted. 

The  views  above  expressed  are  clearl}^  supported  by  the  authorities. 
See  Phillimore's  International  Law,  Volume  II,  pages  3  et  secj.,  and 
especialh'  the  following  language  on  page  12: 

VII.  It  may  indeed  happen,  as  the  game  author  most  justly  observes,  that  the 
debtor  State  may  adopt  measures  of  domestic  finance,  so  fraudulent  and  iniquitous, 
so  evidently  repugnant  to  the  first  principles  of  justice,  with  so  manifest  an  intention 
of  defeating  the  claims  of  its  creditors,  as  to  authorize  the  Government  of  the  cred- 
itor in  having  recourse  to  acts  of  retaliation,  reprisals,  or  open  war — such  measures, 
for  instance,  as  the  permanent  depreciation  of  coin  or  paper  money,  or  the  absolute 
repudiation  of  debts  contracted  on  the  public  faith  of  the  country. 

The  instances  above  quoted  are  matters  of  finance.  The  same  prin- 
ciple applies  absoluteh'  to  an  attempt  to  accomplish  the  same  thing  by 
a  provision  such  as  was  made  by  Venezuela  in  this  case,  making 
recourse  to  its  tribunals  subject  to  risk  both  of  financial  loss  and  per- 
sonal imprisonment. 

VI. 

The  position  of  the  Venezuelan  Govern7)ient  that  this  claim  should 
have  been  submitted  to  its  local  tribunals,  even  if  v:)ell  founded,  has  been 
expressly  waived  by  the  signing  of  the  jyrotocol  under  which  this  Com- 
mission is  appointed. 

Whether  the  position  of  Venezuela,  as  outlined  in  the  correspondence 
of  its  diplomatic  representatives  with  those  of  the  United  States,  is  or 
is  not  well  founded,  it  has  never  been  recognized  by  the  United  States, 
but  has  long  been  a  subject  of  controversy  between  the  two  coun- 
tries and  has  been  one  of  the  essential  causes  for  nonsettlement  of 
many  of  the  controversies  which  are  to  be  submitted  to  this  Commis- 
sion. It  was  largel}^  if  not  entireh%  because  of  disagreement  with 
respect  to  this  position  of  Venezuela  that  the  two  countries  were 
unal)le  to  amicably  agree  upon  the  settlement  of  this  and  other  claims. 
And  it  was  because  of  this  disagreement  on  this  question  to  a  large 
extent  that  there  arose  the  necessity  for  this  Commission. 

The  language  of  the  protocol  itself  can  bear  no  other  interpretation. 
Under  its  provisions — 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  and  which  have  not  been  settled  *  *  *  and  which  shall  have  been 
presented  to  the  conuuission  hereinafter  named  *  *  *  shall  l)e  examined  and 
decided  by  a  mixed  conuuission  *  *  *.  The  commissioners,  or  in  case  of  their 
disagreement,  the  umpire  shall  decide  all  claims  upon  a  basis  of  absolute  equity 
without  regard  to  objections  of  a  technical  nature  or  of  the  provisions  of  local 
legislation. 

It  would  have  been  ditlicult  to  ha\'e  chosen  language  more  directly 
applying  to  this  position  which  has  been  taken  by  the  Republic  of 
Venezuehx  in  the  past.  The  express  exclusion  from  the  consideration 
of^the  Commissioners  of  any  local  legislation  excludes  the  decree  of 
1873  as  well  as  an}^  other  local  enactments,  for  by  the  word  local  wo 
are  to  understand  Venezuelan  law  or  United  States  law,  as  the  case 
S.  Doc.  317,  58-2 4 


50  REPORT  OK  ROBERT  C.   MORRIS. 

may  he,  as  Ixmii'^-  local  to  each  ol"  those  countries  in  dislinctioii  from 
tiiose  })riiu'iples  of  natural  law  which  are  alone  ap})licahl(>  as  h(\tvveen 
two  or  more  count i"ies. 

It  has  moreover  heen  expressly  and  repeatedly  held  that  the  reach- 
ini;"  of  an  agreement  for  arbiti'ation  or  the  appointment  of  a  commis- 
siou  under  circumstances  such  as  this,  is  an  express  waiver  of  any 
provisions  of  law  whoreb}'  the  claims  should  Hrst  have  been  submittccl 
to  local  tribunals. 

In  the  controversies  which  arose  between  the  United  States  and 
(ireat  Britain  under  the  treaty  of  November  19,  1794,  commordy 
called  the  Jay  Treaty,  it  was  and  had  been  contended  by  Great  Britain 
that  the  claims  of  citizens  of  the  United  States  could  and  should  be 
first  submitted  to  the  determination  of  the  local  tribunals  of  England. 
But  it  Avas  held  by  the  commissioners  that  the  making  of  the  treaty 
within  certain  lines  defined  by  it  as  to  the  class  of  cases  which  should 
be  taken  up  and  substituted  the  commissioners  as  a  court  absolutely 
in  place  of  any  such  local  tribunals  and  was  a  waiver  of  any  claim  that 
the  cases  should  first  have  l)een  submitted  to  such  local  tribunals  for 
adjudication.  (3d  Moore's  International  Arbitration,  pp.  3078,  3101 
to  8115,  3161  to  3206.)  See  also  the  opinion  of  William  K.  Day,  as  an 
arbitrator  appointed  under  the  protocol  between  the  United  States  and 
the  Republic  of  Haiti,  in  which  Judge  Day  uses  the  following  language 
with  reference  to  a  similar  claim  that  the  cases  should  have  been  first 
Scvbmittcd  to  adjudication  of  local  tribunals: 

The  arbitrator  in  this  case,  however,  is  given  jurisdiction  of  tlie  differences 
in.ween  the  two  Governments  by  the  terms  of  the  arbitral  agreement,  giving  him 
jurisdiction  and  authority  to  determine  certain  differences.     (For.  Rels.  190f ,  p.  275. ) 

The  protocol  in  this  case  having  given  this  Commission  power  to 
hear  and  determine  all  claims  owned  by  citizens  of  the  United  States 
against  the  Republic  of  Venezuela,  its  power  is  unlimited  to  hear  and 
determine  all  such  claims  whether  they  might  or  might  not  have  been 
otherwise  a  proper  subject  for  adjudication  by  some  local  tribunal  of 
the  Republic  of  Venezuela. 

The  contention  of  the  Republic  of  Venezuela  in  this  respect  has 
therefore  been  abandoned,  and  the  submission  of  all  controversies  to 
this  Commission  conceded  by  its  executing  the  protocol  under  which 
this  Commission  is  appointed. 

VII. 

An  award  should  he  made  hi  this  case  for  the  fxdl  amount  claimed^ 
to  wit,  $21,295.50. 

The  facts  in  this  case  being,  as  we  have  seen,  clearly  established  and 
l)eing,  in  fact,  practically  undisputed,  and  the  only  cause  assigned  by 
the  Republic  of  Venezuela  for  its  unwillingness  hitherto  to  recognize 
and  pay  the  same,  to  wit,  that  the  claim  should  first  be  adjudicated  by 
its  local  court,  having  been  waived  and  al)andoned  by  its  consent  to 
the  establishment  of  this  Commission,  it  is  clear  that  the  Republic  of 
Venezuela  can  no  longer  advance  an}^  pretense  why  Mr.  Ford  Dix 
should  not  recover  the  amount  which  he  now  claims. 

An  award  of  that  amount  should  be  made. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


REPORT  OF  ROBERT  C.  MORRIS.  51 


[Translation.] 
ANSWER. 


Honorctble  Members  of  theVenezuelan-Aiaerican  Mixed  Commission: 

I  have  carefully  studied  the  claim  presented  by  the  American  citi- 
zen Ford  Dix,  and  I  consider  that  the  injuries  of  which  he  complains, 
and  on  account  of  which  he  asks  indemnity  of  Venezuela,  have  been 
estimated  by  him  in  an  exagg.erated  and  arbitrary  manner. 

Before  entering-  into  an  analysis  of  the  facts  which  form  the  basis 
of  the  claim,  I  think  that  before  a  tribunal  of  arbitration,  of  the 
special  kind  that  this  is,  it  is  proper  to  note  a  moral  consideration 
which  must  contribute  in  a  large  degree  in  tixing  a  true  criterion  of 
equity  in  the  case  under  dispute.  Venezuela,  on  account  of  her 
adverse  fortune,  has  since  the  year  1892  been  the  victim  of  civil  war. 
During  a  period  of  eleven  years  armed  revolutions  have  succeeded  one 
another  almost  without  interruption,  draining  the  fountains  of  her 
public  wealth  and  hindering  her  progressive  march.  This  is  a  fact 
generally  known,  since  the  press  of  half  the  world  has  occupied  itself 
on  various  occasions  with  these  movements,  commenting  on  them,  as 
is  natural,  in  prejudice  to  our  position  as  a  nation.  About  the  year 
1898,  at  the  time  when  the  claimant  arrived  in  Venezuela,  the  turbu- 
lent condition  of  our  country  was  then  unfortunately  so  notorious  that 
it  could  not  be  unknown  to  anyone.  On  the  other  hand,  it  can  not  be 
conceived  that  a  foreigner  who  goes  to  establish  himself  in  a  country 
and  to  undertake  there  negotiations,  which  require  a  considerable  out- 
lay of  capital,  should  not  have  informed  himself  by  the  proper  means 
concerning  the  conditions  in  said  country.  The  claimant,  therefore, 
can  not  plead  ignorance,  and  if  he  judged  that  the  benefits  which  he 
might  derive  from  the  business  in  which  he  proposed  to  embark  were 
well  worth  while  to  incur  the  inherent  risks  of  the  negotiation,  it  is 
clear  that  from  then  on  he  accepted  such  risks.  Besides,  it  is  a  prin- 
ciple of  public  law,  generally  recognized  and  accepted,  that  a  foreigner 
''who  takes  up  his  residence  in  a  country  accepts  willingly  and  before- 
hand the  attendant  dangers  to  which  said  country  is  exposed,  and  as 
he  shares  in  the  advantages  enjoyed  by  the  natives  he  ought  also  to 
resign  himself  to  share  in  their  misfortunes."  It  is  certain  that  not 
only  foreign  war  but  also  civil  ought  to  be  considered  among  these 
risks.  From  what  has  been  said  it  should  not  be  considered  that  the 
Venezuelan  Government  seeks  to  shirk  the  responsi])ilities  which  in 
justice  can  be  charged  to  it  for  acts  committed  by  its  troops,  nor  that 
it  is  not  disposed  to  admit  such  responsibility  from  the  very  moment 
when  it  is  established  according  to  law. 

If  the  American  citizini.  Ford  Dix,  has  not  already  been  paid  for 
what  appears  to  have  ])ecn  expressly  acknowledged  due  him  in  the 
documents  produc(!d  in  evidence,  it  should  be  attributed  only  to  the 
fact  that  the  Government  has  established  certain  formalities  for  deter- 
mining this  class  of  payments  to  which  the  claimant  has  i;ot  submitted 
himself.  On  examining  the  injuries  which  the  claimant  claims  to  have 
suffered  we  must  distinguish  ])etween  those  which  were  occasioned  by 
the  troops  of  the  Government  and  those  caused  by  the  forces  which 
were  in  arms  against  its  authority.  With  respect  to  the  first,  it  is 
indubitable  and  beyond  discussion  that  if  it  is  possible  to  establish  them 
in  justice  and  demonstrate  that  they  did  not  arise  from  acts  of  legiti- 
mate defense,  the  responsibility  on  the  part  of  the  Government  is 


52  REPORT  (»K  ROBERT  V.   MORRIS. 

fixed.  With  respect  to  the  second,  :i  })revions  <iuestion  arises  which 
the  tril)uii;il  oiioht  to  decide  and  which  has  ah'cady  l)een  determined  hy 
the  precepts  of  public  hiw.  Accordini^  to  these  precepts,  in  the  cases, 
of  civil  war,  j»'overnnients  are  not  responsible  for  the  damages  caused 
to  the  interests  of  foreigners  by  re])el  troops,  except  when  it  is  proved 
that  they  withdrew  their  protection  and  that  when  they  were  able  to 
prevent  such  damages  they  did  not  do  so.  Now,  then,  in  the  case  under 
discussion  this  proof  has  not  been  established.  In  conse(juence,  the 
indemnity  which  is  asked  on  this  account  has  no  foundation  in  law  or 
in  eijuitv. 

Having  laid  down  the  general  principles  which  precede,  I  shall  con- 
fine myself  to  considering,  one  t)y  one,  the  points  of  the  argument 
made  by  the  honorable  agent  of  the  Government  of  the  United  States. 

Above  all  it  is  necessary  to  observe  that  the  Government  of  Vene- 
zuela has  never  admitted  this  claim,  as  the  argument  to  which  1  refer 
would  seem  to  indicate.  The  Venezuelan  foreign  office,  in  the  diplo- 
matic correspondence  which  was  exchanged  between  it  and  the  lega- 
tion of  the  United  States,  confined  itself  to  sustaining  the  principle  of 
territorial  jurisdiction  for  taking  cognizance  of  and  deciding  this  class 
of  claims  and,  if  it  did  not  contradict  the  facts  on  which  the  present  claim 
is  founded,  it  was  because  the  controvers}"  concerning  this  point  was 
not  within  its  province.  On  account  of  such  failure  its  implied  admis- 
sion of  them  can  not  in  anywise  be  inferred.  I  consider  that  it  would  be 
useless  to  treat  here  of  the  question  of  the  jurisdiction  of  this  tribunal 
to  take  cognizance  of  the  claim  presented.  Although  Venezuela  has 
always  maintained,  in  similar  cases,  the  exclusive  jurisdiction  of  its 
tribunals,  the  last  protocols  signed  in  Washington  imply  a  revocation 
of  this  jurisdiction,  necessitated  by  the  force  of  circumstances,  and 
concerning  which  there  has  been  a  proper  protest  by  the  party  author- 
ized.    The  tribunal  is,  therefore,  now  competent. 

Point  I. 

The  obligation  on  the  part  of  Venezuela  to  pay  Mr.  Ford  Dix  the 
value  of  354  head  of  cattle  at  the  price  of  30  pesos,  sencillos,  per  head, 
is  not  capable  of  being  disputed  because,  although  said»cattle  were 
taken  by  the  rebel  forces,  the  Government  admitted  responsibility  in 
regard  to  them,  as  appears  from  the  vouchers  which  were  executed  in 
favor  of  the  claimant.  With  respect  to  this  the  honorable  arbitrators 
will  obserxe  that  the  price  fixed  for  each  head  of  cattle  is  more  than 
what  is  ordinarily  to  be  obtained  in  this  country,  and  that  the  Govern- 
ment wished  to  include  in  the  total  not  only  the  intrinsic  value  of  the 
cattle  but  also  the  damages  probably  occasioned  by  their  loss.  It 
would  be  easy  to  establish  proof  in  this  regard  if  the  tribunal  should 
consider  it  conducive  to  the  better  investigation  of  the  claim. 

II. 

The  honorable  arbitrators  will  observe  that  the  depositions  taken  at 
the  instance  of  Mr.  Ford  Dix,  to  prove  the  loss  of  242  head,  labor 
under  a  defect  which  precluded  them  from  having  any  force  in  justice. 
The  laws  of  every  civilized  country  demand  in  witnesses  conviccion  de 
oralldad;  that  is  to  say,  that  they  shall  not  limit  themselves  to  answer- 
ing simply  the  interrogatory  propounded  to  them,  but  that  they  shall 


REPORT  OF  ROBERT  C.  MORRIS.  5S 

declare  at  length  the  reason  for  their  statements.  The  object  of  the 
law  is  obvious,  because  it  is  evident  that  were  it  otherwise,  it  would 
be  easy  to  suggest  to  the  witness  what  it  was  desired  that  he  should 
answer.  Now,  then,  of  the  witnesses  examined  in  the  depositions  to 
which  I  am  referring,  only  one  fulfills  the  condition  required.  The 
depositions  of  the  others  are  therefore  of  no  value. 

With  respect  to  the  loss  of  55  head  and  other  animals,  which  the 
claimant  alleges,  it  will  be  seen  that  there  is  no  other  evidence  in  sup- 
port thereof  than  his  own  personal  afiirmation,  and  it  is  a  precept  sanc- 
tioned by  universal  jurisprudence  that  upon  the  claimant  or  actor  rests 
the  burden  in  ever}'  case  of  proving  the  assertion  which  he  makes. 

III. 

Nor  is  the  indemnity  which  the  claimant  demands  on  account  of  the 
low  price  obtained  for  the  388  head  which  he  sold  to  Braaschi  &  Sons 
admissible.  This  was  a  voluntary  act  on  his  part,  the  consequences  of 
which  can  not,  without  notorious  injustice,  be  imputed  to  a  third 
person. 

IV. 

The  indemnity  to  compensate  for  the  losses  arising  out  of  the  failure 
to  carry  out  the  contract  entered  into  by  the  claimant  in  Havana,  is 
equally  inadmissible;  first,  because  no  proof  of  such  contract  exists,  nor 
of  the'price  (grossly  exaggerated)  which  was  fixed  for  each  head;  sec- 
ond, because  even  though  the  claimant  had  all  his  cattle  ready  to 
embark,  he  could  not  have  accomplished  this  in  time,  as  the  port  of 
Puerto  Cabello  was  closed  for  some  months  on  account  of  the  resistance 
in  that  place  of  Gen.  Ontario  Paredes,  a  circumstance  which  obliged 
the  Government  of  the  Republic  to  reduce  it  by  force.  This  fact  is 
notorious. 

V. 

I  deny  also  the  claim  fcr  $1,000,  in  which  sum  the  claimant  estimates 
the  expenses  incurred  in  eflorts  to  obtain  his  cattle.  These  expenses, 
as  1  have  said,  were  included  in  the  price  which  the  Government  rec- 
ognized in  the  vouchers  executed. 

In  fine,  concerning  the  indemnities  claimed  b}'  the  American  citizen, 
Ford  Dix,  those  only  can  be  admitted  which  refer  to  the  amounts 
which  hav(i  been  acknowledged  by  the  (jovernment,  without  interest, 
because  the  latter  has  not  delayed  as  has  been  shown. 

In  closing  this  argument  I  comply  with  my  ofiicial  duties  in  refuting 
a  statement  of  the  lionoi'able  agent  of  th(^.  United  States. 

Refen-ing  to  the  executive  decree  of  1873  Avliich  pi('scril)es  the  pro- 
ceedings which  nuist  be  obseived  in  the  ])rosecution  of  claims  of  for- 
eign citizens  against  th(»  nation,  Mr.  Morris  designates  said  law  as 
odious,  on  account  of  the  restrictions  which  it  contains,  and  that  in  its 
intent  they  themselves  constitute  a  manifest  denial  of  justice.  The 
promulgation  of  said  law  followed  in  ell'ect  the  cogent  necessity  of  pi'c- 
venting  adventurers  of  all  nations  from  continuing  to  exploit  (as  had 
been  tlu'  cas(^  up  to  that  time),  under  the  shadow  of  their  respective 
national  flags,  th(i  weakness  of  Venezuela.  It  is  a  means  of  legitimate 
defense  and  beyond  all  doubt  a  restrictive  law;  but  in  spite  of  the 


54  rj:port  of  Robert  c.  morris. 

c'xtromo  rio-or  of  its  provisions,  (ho  leoiliinato  exercise  of  a  rig'ht  was 
not  and  never  has  been  provcntod,  l)eeaus(^  th(>  considci'ation  of  fear 
can  Jiever  friohten  ott'  the  one  possessing'  such  riolit. 
C'aracas,  June  L>8,  1903. 

F.  Arroyo  1'arkjo. 

Another  reason:  Besides  the  reasons  alleged  to  make  manifest  the 
ineificacy  of  the  depositions  presented  as  proof  of  the  loss  of  242  head, 
there  exists  another  which  the  tribunal  can  not  fail  to  take  into  account, 
namely,  that  by  the  internal  huvs  this  species  of  proof  must  ])e  taken 
with  the  intervention  of  the  party  against  whom  they  operate. 

F.  Arroyo  Pare  jo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}"  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 

of  Ford  Dix,  claimant,  I  xt     -i 

The  Republic  of  Venezuela.  J 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 


The  United  States  takes  issue  on  the  following  points  set  forth  in 
the  answer  of  Venezuela  in  the  above  matter: 

I. 

It  is  submitted  that  the  proof  of  the  value  of  the  cattle  taken  has 
been  sufficiently  established  both  by  the  various  receipts  therefor 
presented  in  evidence  and  by  the  sworn  memorial  of  the  claimant; 
and  that  there  is  no  indication  in  any  of  the  said  receipts  that  they 
were  intended  to  include  not  only  the  actual  value  of  the  cattle  taken 
but  also  the  damages  probabl}^  occasioned  by  their  loss. 

II. 

The  stand  assumed  by  Venezuela  that  the  evidence  adduced  in  the 
justificativo  submitted  is  insufficient  is  not  well  taken.  Any  evidence 
which  tends  to  produce  a  moral  conviction  in  the  minds  of  the  court  is 
sufficient  before  a  tribunal  of  this  character.  In  the  Halifax  commis- 
sion it  was  contended  by  the  British  agent  that  ex  parte  affidavits 
should  not  be  admitted;  while  Mr.  Foster,  the  representative  of  the 
United  States,  on  the  other  hand,  maintained  their  admissibility,  the 
commissioners  ])eing  left  to  attach  to  them  such  weight  as  they  might 
deem  proper.  The  commissioners  after  deliberation  decided  that  such 
affidavits  should  be  admitted.  Also  in  the  case  of  llontijo,  ))etween 
the  United  States  of  America  and  Colombia,  Mr.  Robert  Bunch,  the 
umpire,  made  the  following  statement: 

To  the  first  of  the  allegations  the  undersigned  replies  tiiat,  although  independent 
testimony  of  any  fact  is  always  desirable,  there  are  many  cases  in  which  it  can  not 
be  procured.     But  this  is  no  reason  for  excluding  the  evidence  of  eyewitnesses  of 


REPORT  OF  ROBERT  C.  MORRIS.  55 

and  participators  in  a  transaction  on  the  ground  that  they  may  be  interested,  pecu- 
niarily or  otherwise,  in  its  solution.  To  render  such  testimony  invalid  it  would  be 
necessary  to  prove  a  notorious  absence  of  credibility  in  the  witnesses,  or  a  manifest 
combination  or  conspiracy  on  their  part  to  swear  falsely.  It  would  surely  not  be 
held  that  in  a  trial  for  mutiny  committed  on  board  of  a  ship  on  the  high  seas,  the 
evidence  of  a  portion  of  the' crew  could  not  be  received  against  another  portion 
because  the  informants  might  expect  a  reward  from  the  owners,  or  a  share  in  the 
property  which  they  might  have  contributed  to  save  by  their  resistance  to  the  nniti- 
neers.      (Moore's  International  Arbitrations,  vol.  2,  pp.  1434-1435.) 

Moreover  in  the  Caldera  .cases  (15  C.  Cls.  R.,  546),  which  I  have 
referred  to  in  my  original  brief,  Judge  Davis  holds  as  follows: 

In  the  means  by  which  justice  is  to  be  attained,  the  court  is  freed  from  the  tech- 
nical rules  of  evidence  imposed  by  the  common  law,  and  is  permitted  to  ascertain 
truth  by  any  method  which  produces  moral  conviction.  This  proposition  is  self- 
evident."  The  restraints  which  municipal  law  imposes  upon  the  taking  and  use  of 
evidence  vary  greatly  in  different  countries.  In  its  broadest  sense  the  word  evidence 
includes  all  'means  "by  which  any  alleged  fact,  the  truth  of  which  is  submitted  to 
examination,  may  be'established  or  disproved.  (1  Green,  Ev.,  sec.  1.)  If  it  were 
necessary  to  justify  the  granting  of  such  wide  powers  to  the  commissioners,  it  would 
be  easv'to  do  so."  International  tribunals  always  exercise  great  latitude  in  such 
matters  (Meade's  Case,  2  C.  Cls.  R.,  271),  and  give  to  affidavits,  and  sometimes  even 
to  unverified  statements,  the  force  of  depositions. 

If  the  appearance  of  the  Venezuelan  Government  at  the  taking  of 
the  testimon}^  in  support  of  these  matters  were  necessar}-,  how  long 
that  Government  would  delay  its  attendance,  or  whether  it  would 
appear  at  all,  would  be  a  matter  of  speculation  ou\y. 

We  contend,  therefore,  that  the  position  of  the  Venezuelan  Govern- 
ment as  to  those  cattle  referred  to  in  the  justificativo  as  to  the  55  head 
of  cattle  which  Mr.  Dix  swears  to  in  his  memorial  and  as  to  the  indem- 
nity which  the  claimant  demands  b}'  virtue  of  the  .sacrifice  of  cattle 
sold  to  Braschi  &  Sons,  also  sworn  to  and  evidenced  by  receipt,  can 
not  be  sustained. 

III. 

Regarding  the  contention  of  the  Government  of  Venezuela  that  the 
claimant  can  not  recover  for  the  injuries  arising  out  of  his  failure  to 
carry  out  the  contract  entered  into  with  the  Habana  firm,  we  submit 
that  this  loss  is  directly  chargeable  to  the  acts  of  the  Venezuelan 
Government. 

The  statement  that  no  proof  of  such  contract  exists  is  incorrect, 
inasmuch  as  the  contract  has  been  submitted  in  evidence. 

IV. 

As  to  the  claim  for  §1,000,  estimated  by  the  claimant  as  his  expenses 
incurred  in  connection  with  this  matter,  we  submit  that  it  is  fair, 
moderate,  and  just. 

V. 

This  claim  is  made  only  after  the  reduction  of  many  thousands  of 
dollars  in  the  amount  originally  demanded,  in  order  to  avoid  inflicting 
any  unneces.sary  hardship  on  the  Government  of  Venezuela. 

An  award  should  be  made  to  the  claimant  for  the  full  amoiuit  of 
his  claim. 

Respectfull}'  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


56  REPOKT  OF  ROBERT  C.  MORRIS. 

The   rnited    States  and  Venezuelan   (Claims  Commission,   sitting  at 

Caraeas,  Venezuela. 


The  United  States  of  Amehica  on  ueiialf] 
of  Foi-d  Dix,  claimant. 


-No.  1. 


V. 

The  llEruHLic  of  Venezuela.  | 

DECISION  AND  AWARD. 

The  Commission  awards  to  the  claimant  the  sum  of  111,837.53  in 
United  States  gold. 

Opinion  by  Bainbridge,  ConnnivSsioner. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at  Cara- 
cas, Venezuela. 

The   United  States  of  America  on   behalf! 

of  Ford  Dix,  claimant,  [^     -. 

V.  (       •    • 

The  Republic  of  Venezuela. 

Bainbridge,  Coimnissioner. 

The  statement  of  facts  upon  which  this  claim  is  based  is  substantially 
as  follows: 

In  September,  1899,  at  the  beginning  of  the  revolution  led  by  Gen- 
eral Castro  against  the  government  of  President  Andrade,  Ford  Dix, 
a  native-born  citizen  of  the  United  States,  was  engaged  in  the  cattle 
business  in  Venezuela,  having  leased  pastures  near  Valencia  and 
Miranda,  upon  which  he  alleges  he  had  at  the  time  mentioned  about 
800  head  of  beef,  21  milch  cows,  16  yearling  calves,  6  saddle  horses, 
and  1  mule.  Dix  claims  that  he  had,  on  July  3,  previous,  entered 
into  a  contract  with  the  firm  of  Salmon  &  Woodrow,  of  Habana,  Cuba, 
by  which  he  agreed  to  deliver  said  firm  between  September  15  and 
October  7,  1899,  750  to  800  head  of  cattle,  to  weigh  750  to  900  pounds 
each,  for  which  said  firm  was  to  pay  him  $50  per  head. 

On  September  15  a  battle  occurred  at  Tocuyito.  between  the  Gov- 
ernment forces  and  the  revolutionists  in  which  the  Government  army 
was  completel}'  routed.  The  revolutionary  army  remained  in  that 
section  of  the  country  for  several  months,  and  at  various  times  between 
September  15  and  December  31,  1899,  Dix's  cattle  were  confiscated 
for  the  use  of  the  army.  Dix  alleges  that  they  took  from  him  409 
beeves.  16  milch  cows,  1^5  calves,  4  saddle  horses,  and  1  mule;  that  to 
avoid  losing  the  remaining  3S8  head  he  sold  them  to  Braschi  &  Sons, 
of  Valencia,  at  a  sacrifice,  viz,  !i^l9  per  head,  Venezuelan;  that  by  rea- 
son of  the  above,  and  to  the  fact  that  there  was  no  conununication 
with  the  seacoast,  he  was  pre\ented  from  compl^-ing  with  his  contract 
with  Salmon  &  Woodrow,  and  was  obliged  to  pay  said  firm  $1,875 
damages  on  account  of  his  failure  to  deliver  the  cattle  as  required  by 
the  terms  of  said  contract.  Dix  succeeded  in  obtaining  from  the  rev- 
olutionar}'  authorities  evidence  of  the  taking  of  252  head  of  cattle,  and 
subsequently,  upon  personal  request  of  Dix  to  be  paid  for  his  cattle, 
General  Castro,  after  assuming  the  office  of  President,  caused  to  be 
issued  to  Dix  a  "'Government  warrant"  for  the  value  of  102  head. 

No  documentar}'  evidence  is  submitted  in  support  of  the  claimant's 
allegation  of  the  taking  of  the  other  55  beeves,  16  cows,  16  calves,  3 


\ 


REPORT  OF  ROBERT  C.  MORRIS.  57 

horses,  and  1  mule.  The  taking-  of  1  horse  is  proven  by  an  orioinul 
telegram  signed  b}'  General  Castro. 

Mr.  Dix  also  makes  a  claim  for  expenses  which  the  above  circum- 
stances caused  him  to  incur  in  traveling-  expenses,  railroad  fares,  hotel 
bills,  etc. 

As  submitted  to  this  Commission,  the  claim  of  Mr.  Dix  ma}'  be  sum- 
marized as  follows: 

Loss  of  354  head  of  beef  cattle,  at  $30  (Vene/Aielan ) $10,  620.  00 

Loss  of  388  head  of  beef  cattle,  at  ?^1  (difference  Ijetweeu  price  obtained 

by  Dix  and  value  stated  in  vouchers  given) 4,  268.  00 

Lo.ss  of  55  head  of  beef  cattle  for  which  no  vouchers  were  obtained,  at  $30 

per  head 1,  650.  00 

Other  cattle  and  ranch  animals  as  follows: 

1  saddle  horse §150 

1  saddle  horse 1 00 

1  saddle  horse 200 

1  saddle  mare 50 

1  saddle  mule 250 

16  milch  cows,  at  $35  per  liead 560 

16  calves,  at  $10  per  head 160 

1,470.00 

Amount  paid  for  nonfulfillment  of  contract  w  itli  Salmon  i<:  Woodrow 2,  437.  50 

Expenses 1,  000.  00 

Total  (Venezuelan) 21,445.50 

The  revolution  of  1899,  led  by  Gen.  Cipriano  Castro,  proved  suc- 
cessful, and  its  acts,  under  a  well-established  rule  of  international  law, 
are  to  be  regarded  as  the  acts  of  a  de  facto  government.  Its  adminis- 
trative and  military  officers  were  engaged  in  carrying  out  the  policy  of 
that  Government  under  the  control  of  its  executive.  The  same  liabilit}" 
attaches  for  encroachments  upon  the  rights  of  neutrals  in  the  case  of 
a  successful  revolutionary  government,  as  in  the  case  of  any  other  de 
facto  government.  What  the  liabilit^MS  has  been  clearly  stated  in  the 
case  of  Shrigle}'  v.  Chile,  decided  by  the  United  States  and  Chilean 
Claims  Commission  of  1892,  as  follows: 

Neutral  property  taken  for  the  use  or  service  of  armies  or  functionaries  thereunto 
authorized  gives  a  right  to  the  owner  to  demand  compensation  from  the  government 
exercising  such  authority. 

In  the  case  before  us,  so  far  as  the  354  head  of  cattle  are  concerned, 
the  taking  of  which  b}-  the  revolutionary  army  is  in  various  forms 
evidenced,  the  liabilit}'  of  Venezuela  to  compensate  Mr.  Dix  is  deter- 
mined by  the  rule  above  quoted.  And  this  liabilit}^  may  fairly  be 
extended  to  include  compensation  for  the  other  stock,  either  taken  by 
the  revolutionary  troops  or  lost  as  the  direct  result  of  the  depredations 
of  the  army  in  the  stampeding  of  the  herd,  the  destruction  of  fences, 
etc.  That  Dix's  cattle  were  taken  under  authorization  of  the  military 
officers  is  proved  by  the  receipts  given  by  Generals  Lovera,  Martinez, 
and  Lima  and  the  "(xin^ernment  warrant"  given  by  President  Castro. 
Dix  states  that  General  Hernandez  told  him  that  he  would  exempt  his 
cattle  as  far  as  possible,  but  that  "he  did  not  propose  to  face  defeat 
for  the  want  of  something  to  eat  for  his  ti'oops." 

The  value  of  the  cattle  taken,  as  stated  in  the  receipts  and  the  "Gov- 
ernment warrant"  given  b\'  (Jctioral  ('astro,  is  §80  (Venezuelan)  per 
head.  As  to  the  cattle  for  which  Dix  could  not  obtain  receipts,  but 
whose  loss  he  establishes  by  other  documentary  evidence,  tiicir  value 
is  stated  by  Dix  and  olhei-  witnesses  as  "at  not  less  than  one  hundied 
and  twenty  bolivares  per  head  in  this  market"  ($30  Venezuelan).     The 


5S  REPORT    OF    ROHKRT    0.   MORRIS. 

value  of  the  409  beeves  tnkiMi  from  oi-  lost  by  Dix  was  therefore  $12,270 
(N'iMuvuolan).  To  this  must  l)e  tulded  the  value  of  the  mule,  saddle 
hors(>s,  cows,  and  ealves  also  taken  from  him.  amounting  to  ^1,470 
(N'enivuelaii).  Thus  the  total  value  of  Mr.  Dix's  stoek,  coiihscated  or 
U>st.  amounted  to  ^1^,740  (\enezuelaii)- 

On  IX^eember  IS.  IS'.t'.t,  ^{y,  Dix  sold  and  delivered  at  Los  (niayos, 
to  the  lirm  of  A.  Brasehi  tSc  Sons,  ;-5SS  beeves  at^li>  (\'enezuelan  money) 
l)er  head.  He  says:  "1  made  a  sale — that  is  I  saeritieed  them — to  save 
soiintJuiigr  lie  makes  a  claim  ao'ainst  the  Venezuelan  Government 
for  ^4.2(58,  the  difference  between  the  sum  received  by  him  from 
Brasehi  &  Sons  and  the  alleged  actual  value  of  the  cattle  (to  wit,  |30 
per  head)  which  he  sold  to  them. 

(lovernments,  like  individuals,  are  responsi])le  only  for  the  proxi- 
mate and  ntitiu'al  conse(|uences  of  their  acts.  International  as  wcdl  as 
municipal  law  denies  compensation  for  remote  conse({uences  in  the 
absence  of  evidence  of  deliberate  intention  to  injure.  In  my  judg- 
ment the  loss  complained  of  in  this  item  of  Dix's  claim  is  too  remote 
to  entitle  him  to  compensation.  The  military  authorities,  under  the 
exigencies  of  war,  took  pai-t  of  his  cattle,  and  he  is  justly  entitled  to 
compensation  for  their  actual  value.  But  there  is  in  the  record  no 
evidence  of  any  duress  or  constraint  on  the  part  of  the  military 
authorities  to  compel  him  to  sell  his  remaining-  cattle  to  third  parties 
at  an  inadequate  price.  Neither  is  there  any  special  animus  shown 
against  Mr.  Dix.  nor  any  deliberate  intention  to  injure  him  because 
of  his  nationality.  He  refers  himself  to  the  estimation  in  which  he 
was  held  by  General  Castro.  If  the  disturbed  state  of  the  country 
impelled  Mr.  Dix  to  sacrifice  his  property,  he  thereby  sufiered  only 
one  of  those  losses  due  to  the  existence  of  war,  for  A\"liich  there  is, 
unfortunately,  no  redress. 

Upon  similar  grounds  the  claim  of  Mr.  Dix  to  be  reimbursed  b}-  the 
Venezuelan  Government  for  the  amount  alleged  to  have  been  paid  by 
him  to  the  Habana  firm  as  damages  for  the  nonfulfillment^of  his  con- 
tract must  be  disallowed.  Interruption  of  the  ordinary  course  of 
business  is  an  invariable  and  inevital)le  result  of  a  state  of  war.  But 
incidental  losses  incurred  ])y  individuals,  whether  citizens  or  aliens, 
by  reason  of  such  interruption  are  too  remote  and  consequential  for 
compensation  by  the  government  within  whose  territory  the  war 
exists. 

Moreover  it  is  very  probable  that  Mr.  Dix  could  not  have  complied 
with  his  contract  even  had  the  revolutionists  left  him  in  undisturbed 
possession  of  his  cattle,  for  the  reason  that  the  port  of  Puerto  Cabello 
was  closed  for  several  weeks.  Dix  says,  ''  I  realize  and  realized  that 
had  I  had  undistur})ed  possession  of  my  cattle  I  could  not  have  shipped 
theiu  within  the  allotted  time  on  account  of  the  revolution.'"'  Had 
Mr.  Dix  been  able  to  complete  his  contract  he  would  have  made  a 
large  profit;  instead  he  appears  to  have  sufiered  a  loss.  "  I  would  not 
have  gone  to  that  country,''  he  says,  "to  encounter  the  known  diffi- 
culties, not  to  mention  the  unknown,  for  just  a  reasonable  profit.  I 
went  after  the  fancy  profits  which  I  ascertained  were  to  be  made."' 
He  must,  however,  be  held  to  have  been  willing  to  accept  the  risks  as 
well  as  the  advantages  of  his  domicil  in  a  country  in  a  state  of  civil 
war. 

These  principles  also  dispose  of  !Mr.  Dix's  claim  for  expenses.  It 
is  doubtless  true  that  he  was  subjected  to  considerable  inconvenience 
and  expense:  but  his  rights  and  immunities  in  that  regard  are  not  dif- 


liEPORT    OF    ROBERT    C.  MORRIS.  59 

ferent  from  those  of  other  inhal)itunts  of  the  couutr}',  and  "no  govern- 
ment compensate.s  its  subjects  for  losses  or  injuries  suffered  in  the 
course  of  civil  commotions."     (Hall.) 

In  view  of  the  foregoing  an  allowance  is  made  in  this  claim  in  the 
sum  of  13,7-10  Venezuelan  dollars,  with  interest  at  3  per  cent  per 
annum  from  January-  1,  lUOO,  to  December  31,  1903,  the  latter  being 
the  anticipated  date  of  the  final  award  by  this  Commission.  The  total 
sum  allowed  is,  therefore,  1.5,388.80  Venezuelan  dollars,  equivalent  to 
the  sum  of  $11,837.53  in  gold  coin  of  the  United  States. 

Note. — Wherever  in  this  opinion  the  words  "  Venezuelan  dollars" 
are  used,  the  meaning  thereof  is  "  Venezuelan  pesos"  of  the  value  of 
four  bolivares  each. — W.  E.  B. 

The  United  States  and  Venezuelan  Claims  Connnission,  sitting  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Ford 
Dix,  claimant,  against  the  Republic  of  Venezuela,  No.  1,  the  sum  of 
eleven  thousand  eight  hundred  thirtj-seven  and  53/100  dollars 
($11,837.53)  in  United  States  gold  coin  is  hereby  awarded  in  favor  of 
said  claimant,  which  sum  shall  be  paid  by  the  Government  of  Vene- 
zuela to  the  Government  of  the  United  States  of  America  in  accord- 
ance with  the  provisions  of  the  convention  under  which  this  award  is 
made. 

William  E.  Bainbridge, 
Commissioner  on  the  ixirt  of  tJie  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  tJie  'part  of  Ve?iezuela. 
Rudolf  Dolge, 

Secretary  <»i  the  ^nirt  (f  the  United  States  of  America. 
Delivered  July  7,  1903. 


Before  the  Mixed  Connnission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  or  America  on  behalf  ] 
of  Catalina  Violanti  Paez  and  Jose  | 

Antonio  Paez,  claimants,  {-  No.  2. 

V. 

The  Rei'ublh;  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  a  claim  of  (^atalina  V.  Paez 
and  Jose  Antonio  Paez,  in  the  sum  of  Ti,000  jjolivurcs  (about  $2,400) 
with  interest  from  December  18,  1897. 


60  RKPORT   OK    U(H?KKT    0.   MORRIS. 

Claimants  arc  native-born  citizens  of  the  United  States,  the  only 
children  of  Kanion  Pacz,  deceased,  wlio  was  a  naturalized  citizen  of 
the  United  States. 

The  claim  is  l)ased  upon  an  instrument  in  writino-,  executed  by  the 
minister  of  the  interior  of  the  Repul)lic  of  Venezuela,  under  the 
authority  of  the  President  of  the  Republic  in  counsel  with  his  minis- 
ters, whereby  tiiere  was  ordered  to  be  paid  to  the  claimants  the  sum 
of  12,000  bolivares. 

There  are  set  forth  in  the  evidence',  letters  of  April  28,  1898,  June 
4,  1898,  and  November  15,  1898,  from  the  authorities  of  the  Republic 
of  Venezuela,  a  letter  from  its  then  President,  Ignacio  Andrade, 
acknow  ledoing-  this  claim,  and  advancing  as  the  sole  reason  for  its  non- 
im^ment  tlie  insuificiency  of  funds. 

The  claim  therefore  presents  a  conceded  and  admitted  liability  on 
the  part  of  the  Republic  of  Venezuela,  and  an  award  should  be  made 
in  favor  of  the  claimants  for  the  full  amount,  with  interest  at  the  legal 
rate  from  December  18,  1897.  Whatever  question  there  may  be  as  to 
the  allowance  of  interest  upon  unliquidated  claims,  there  can  be  no 
question  as  to  the  right  to  interest  upon  a  contractual  obligation  such 
as  the  basis  of  the  claim  in  this  case.  The  amount  due  on  this  claim 
on  June  1,  1903,  with  interest  at  3  per  cent  from  December  18,  1897, 
is  $2,792.15. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  tlie  United  States. 

The  United  States   and  Venezuelan  Claims   Commission,   sitting   at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ] 

of  Catalina  V.  and  Jose  A.  Paez,  claimants,      I  xr     o 

V.  ^     o.     .  ' 

The  Republic  of  Venezuela.  | 

DECISION  AND  AWARD. 

The  Commission  awards  to  the  claimants  the  sum  of  $2,550  in  United 
States  gold. 

Opinion  by  Doctor  Paul,  Commissioner. 

The   United   States  and  Venezuelan   Claims   Commission,   sitting   at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 

of  Catalina  V.  and  Jose  A.  Paez,  claimants,      1  xt     o 

V. 

The  Republic  of  Venezuela. 

Doctor  Paul,  Commissioiier : 

The  United  States  presents  lief  ore  this  Commission  a  claim  of  Cata- 
lina V.  and  Jose  A.  Paez  for  the  sum  of  Bs.  12,000  and  interest  from 
December  18,  1897. 

It  appears  that  the  claimants,  Catalina  Violante  Piiez  and  Jose  Anto- 
nio Paez,  legitimate  children  of  Ramon  Paez,  a  naturalized  citizen  of 
the  United  States,  are  creditors  of  the  Government  of  the  Republic  of 


REPORT  OF  ROBERT  C.  MORRIS.  61 

Venezuela  for  the  sum  of  Bs.  12,000,  which  in  accordance  with  a  resolu- 
tion dictated  by  the  President  of  the  Republic  in  ministerial  council 
and  ratified  by  the  minister  of  the  interior  in  Caracas  on  the  18th  of 
December,  1897,  was  granted  to  them  in  the  shape  of  quarterly  pay- 
ments of  Bs.  too  payable  from  the  1st  of  January,  1898,  through  the 
mercantile  firm  of  H.  L.  Boulton  &  Co.,  of  this  city,  in  compensation 
for  special  services  rendered  to  the  Government  with  great  efficiency 
by  the  said  Ramon  Paez. 

From  the  letters  addressed*  by  General  Ignacio  Audrade  to  Miss 
Catalina  Paez  under  date  of  the  15th  of  November,  1898,  and  on  the 
ITth  of  June  of  the  same  year  by  Mr.  Manuel  Antonio  Matos,  minister 
of  finances  at  the  time,  it  appears  that  the  Government  did  not  comply 
with  the  payments  agreed  upon,  owing  to  the  scarcity  of  the  revenues. 

This  claim  has  been  accepted  by  the  agent  for  Venezuela  before  this 
Commission  as  well  founded. 

Therefore  the  claim  is  accepted  for  the  principal  sum  of  Bs.  12,000 
and  yearly  interest  at  the  rate  of  3  per  cent,  to  be  counted  from  the 
average  date  of  the  five  years  at  the  end  of  which  this  ol)ligation  should 
have  been  canceled  if  paid  at  the  rate  of  Bs.  200  a  month,  that  is  to 
say,  from  the  1st  of  July,  1900,  to  the  30th  of  December  of  the  present 
year.  This  interest  represents  the  sum  of  Bs.  1,260,  which  with  princi- 
pal amounts  to  the  sum  of  Bs.  13,260,  or  figured  at  the  exchange  of 
Bs.  5.20  per  dollar  American  gold  gives  the  sum  of  $2,550  American 
gold,  for  which  this  claim  is  accepted. 

The  United  States  and  Venezuelan  Claims  Commission,   sitting   at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  The  United  States  of  America  on  behalf  of  Cata- 
lina V.  and  Jose  A.  Paez,  chiimants,  against  The  Republic  of  Venezuela, 
No.  2,  the  sum  of  two  thousand  five  hundred  and  fifty  dollars  in  United 
States  gold  coin  is  hereby  awarded  in  favor  of  said  claimants,  which  sum 
shall  l)e  paid  by  the  Government  of  Venezuela  to  the  Government  of 
the  United  States  of  America  in  accordance  with  the  provisions  of  the 
convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  Part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  Part  of  Venezuela . 

Attest  to  award: 

Harry  Barge,  President. 

Attest: 

J.  Padr6n  Uztakiz,  ^ 

Secretarr/  on  the  Part  <f  Venezuela. 
Rudolf  Doloe, 

Secretary  on.  iJo'  Part  of  the  Uriited  States  of  Amerr'iGa. 

Delivered  June  26,  1903. 


62  KEPUKT  OF  KOUKKT  ('.  MOKKIS. 

Hcforo  tho  Mixed  Coniniission  oro-ani/ed  under  the  protocol  of  Febru- 
ary IT,  U)03,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  I 

of  Corinnc  B.  De  Gannendia,  clainiaut,  \  -j^^    g 

The  Kki'Ublic  of  Venezuela.  j 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Corinne  B.  De 
Garmendia,  as  the  sole  legatee  of  Carlos  G.  De  Garmendia,  for  the  bal- 
ance due  upon  an  admitted  obligation,  which  amounted  on  the  27th  of 
February,  1890,  to  the  sum  of  $U0,76T,  upon  which  there  has  since  l)een 
paid  the  sum  of  $11,600.  The  claim  is  for  the  balance,  with  interest 
from  February  27,  1890. 

The  claimant,  Madame  Corinne  B.  De  Garmendia,  is  a  native-born 
citizen  of  the  United  States  and  is  the  sole  legatee  of  her  late  husband, 
Carlos  G.  De  Garmendia,  in  whose  favor  the  claim  arose.  Carlos  (i. 
De  Garmendia  was  a  naturalized  citizen  of  the  United  States,  having 
been  naturalized  in  1873,  prior  to  the  origin  of  the  claim  in  this  case. 

The  memorial  and  petition  presented  narrated  at  some  length  the 
circumstances  out  of  which  the  claim  arose.  For  the  purpose  of  deter- 
mining the  claim,  however,  this  Commission  need  only  examine  the 
certified  copy  from  the  record  from  the  financial  department  of  the 
minister  of  the  treasury,  of  which  both  the  original  and  a  translation 
are  submitted,  whereby  it  appears  that  Carlos  B.  De  Garmendia  made 
a  claim  for  431,500  bolivars,  amounting  to  the  sum^f  $90,767.  This 
claim  was  recognized  by  a  resolution  i:>assed  by  the  committee  of  exam- 
ining the  acknowledgment  of  debts  on  the "27th  of  February,  1890, 
and  approved,  and  40,000  bolivars  (about  $10,000)  ordered  to  be  paid 
upon  account.  This  sum  was  paid  on  February  26,  1891.  There  was 
subsequently  paid  the  further  sum  of  $1,600  on  account  in  the  month 
of  January,  1898. 

The  evidence  in  this  case  shows  an  admitted  liability,  recogniz-ed  by 
the  official  records  and  proceedings  of  the  Venezuelan  authorities, 
conceding  that  there  was  due  to  Carlos  G.  de  Garmendia,  on  the  27th 
of  Februarv,  1890,  the  sura  of  $90,767.  This  claim  was  never  disputed 
by  the  authorities  of  the  Republic  of  Venezuela.  On  the  contrary, 
there  have  been  renewed  and  repeated  assurances  of  its  payment,  as 
well  as  a  recognition  of  the  liability  b}^  the  payments  which  have  been 
made  on  account. 

Whatever  question  there  may  have  been,  if  any,  as  to  the  amount 
claimed  for  damages,  these  questions  have  all  been  removed  by  the 
action  of  the  committee  for  examining  the  acknowledgment  of  debts. 
This  claim  is  made  upon  an  acknowledgment  contained  in  a  record  of 
the  Treasury  Department  of  the  Republic  of  Venezuela,  made  at  that 
time,  conceding  a  lia>)ility  of  $9<),767. 
The  claim  may  be  stated  as  follows: 


REPORT  OF  ROBERT  0.  MORRIS.  63 

On  the  27tli  of  February,  1890,  there  was  an  acknowledged 

debt  on  behalf  of  Venezuela  of $90,  767.  00 

On  the  26th  day  of  February,  1891,  a  payment  was  made  of.     10,  000.  00 
We  have  therefore  to  calculate  interest  on  ^90,767,  at  3  per 

cent,  until  the  payment  of  the  first  instahment,  which  amounts  to S2,  715.  55 

Sometime  in  the  month  of  January,  1898,  an  installment  was 

paid  of .'. 1,  600.  60 

We  have  therefore  to  calculate  interest  at  3  per  cent  on 80,  767.  00 

from  February  26,  1891,  to,  say,  the  15th  of  January,  1898, 

which  amounts  to 16,  653.  03 

Since  the  month  of  January,  1898,' no  further  payment  on 

account  has  been  made,  and  we  have  therefore  to  calculate 

interest  at  3  per  cent  on  the  suna  of 79, 167.  00 

from  the  loth  of  January,   1898,   to  the  1st  of  June,  1903, 

which  amounts  to 12,  759.  05 

The  total  interest  due  is 32, 127.  63 

Balance  of  principal 79, 167.  00 

Grand  total _ Ill,  294.  63 

An  award  should  therefore  be  made  for  the  sum  of  §111,294.63  for 
the  amount  due  and  unpaid  on  the  1st  of  June,  1903.     There  can  be 
no  question  as  to  the  right  to  interest  on  this  admitted  contractual 
obligation  of  the  Republic  of  Venezuela. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

No.  3. 

Honorable  raemhers  of  the  Yenezudan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela  before  this 
honorable  Commission,  has  considered  the  claim  presented  b\'  Mrs. 
Corinne  de  Garmendia  in  her  capacity  as  heir  of  her  deceased  husband, 
Carlos  G.  de  Garmendia,  an  American  citizen,  and  respectfully  calls 
the  attention  of  the  tribunal  to  the  following: 

That  according  to  the  original  record  which  is  produced,  the  prede- 
cessor of  the  claimant  never  succeeded  in  proving  before  the  authori- 
ties of  Venezuela,  nor  before  the  bodies  organized  to  take  cognizance 
of  that  class  of  claims,  the  foundation  of  his  own. 

The  pa3'ments  on  account  which  are  alleged,  were  ordered  by  virtue 
of  personal  acts  of  some  of  the  functionaries  contrary  to  express  laws, 
and  constitute,  without  any  doubt,  an  unauthorized  payment. 

In  consequence,  the  claim  is  inadmissible,  and  equity,  well  under- 
stood, necessitates  the  declaring  it  so,  as  the  undersigned  respectfully 
asks  the  tribunal  to  do. 

Caracas,  23d  June,  1903. 

(Signed)  Arroyo  Pare.to. 


64  REPORT  OF  ROBERT  C.  MORRtS. 

The   Uuitocl    Stutos   and  Vcnezueltin  Cltiiiiiw  Coniniission,  siltinj(  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ] 
of  Coriiuie  B.  de  (Tai'incndia,  sole  lej^atee  of  | 
Carlos  G.  dc  GarnuMidia,  deceased,  claimant,   |-  No.  3. 
r. 
The  Republics  of  Venezuela. 

DECISION  AND  AWARD. 

The  Commission  awards  to  the  claimant  the  sum  of  |i29,-->()3.64  in 
United  States  gold. 

Opinion  by  Bainbridge,  Commissioner. 

The   United   States  and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ] 
of  Corinne  B.  de  Garmendia,  sole  legatee  of  j 
Carlos  G.  de  Garmendia,  deceased,  claimant,  [  No.  S. 

i 
The  Republic  of  Venezuela.  J 

Bainbridge,  Commissioner. 

The  United  States  of  America,  on  behalf  of  Corinne  B.  de  Garmen- 
dia, as  sole  legatee  under  the  will  of  Carlos  G.  de  Garmendia,  deceased, 
presents  a  claim  against  the  Government  of  Venezuela  for  the  sum  of 
$111,274.63,  said  claim  ])eing  based  upon  the  following  statement  of 
facts: 

First.  That  on  July  7,  1877,  Carlos  G.  de  Garmendia,  a  naturalized 
citizen  of  the  United  States,  made  with  the  Government  of  Venezuela, 
through  its  minister  of  the  interior,  a  contract  to  establish  steam 
vessel  conmiunication  between  New  York  City  and  the  ports  of  La 
Guayra  and  Puerto  Cabello,  the  Government  of  Venezuela,  in  consid- 
eration of  the  advantages  to  accrue  to  the  entire  country  from  such 
communication,  binding  itself  to  aid  the  enterprise  with  a  monthly 
subsidy  of  1:,00()  Venezuelan  dollars.  The  contract  was  to  "remain  in 
full  force  and  power  for  the  term  of  two  years." 

The  enterprise  conunenced  operations  December  15,  1877,  and  from 
that  date  the  Government  of  Venezuela  paid  punctually  the  nionthly 
subsidy  of  4,000  Venezuelan  dollars  until  January  15, 1879,  In  March, 
1879,  the  Government  gav^e  notice  to  De  Garmendia's  agents  that  it 
would  no  longer  continue  paying  the  subsidy,  there  being  then  due 
and  unpaid  one-half  of  the  monthly  subsidy  for  January  and  the  whole 
of  that  for  February.  De  Garmendia  continued  the  steamship  service 
until  May,  1879,  at  which  time  it  was  discontinued  on  account  of  the 
nonpayment  of  the  subsidy.  For  this  breach  of  contract  a  claim  is 
made  for  the  unpaid  sul)sidy  from  January  15  to  December  15,  1879, 
in  the  sum  of  44,000  Venezuelan  dollars,  with  interest  at  3  per  cent 
per  annum. 

Second.  That  in  1874  one  H.  de  Garmendia  made  a  contract  with  the 
Government  of  Venezuela  to  establish  a  permanent  factory  for  the 
manufacture  of  ice  in  the  city  of  Caracas,  with  branches  at  La  Guayra 


REPORT  OF  ROBERT  C.  MORRIS.  65 

and  Puerto  Cabello.  In  order  to  establish  the  depot,  a  frame  house, 
with  all  the  machiner}-  and  requirements  of  the  enterprise,  was 
imported  from  the  United  States  into  Venezuela.  In  1879,  on  account 
of  the  stoppage  of  the  payment  of  the  subsidy  to  the  steamship  line 
operated  by  Carlos  G.  do  Garmendia,  and  the  consequent  discontinu- 
ance of  the"  steamers,  the  ice  enterprise  could  no  longer  be  carried  on, 
and  in  payment  of  advances  made  by  Carlos  G.  de  Garmendia,  the 
house  and 'ice  plant  were  conveyed  to  him  by  the  said  H.  de  Garmen- 
dia. In  April,  1879,  General  Guzman  Blanco  ordered  the  destruction 
of  the  house  containing  the  ice  plant.  That  said  house  had  been 
imported  and  placed  in  La  Guayra  at  a  cost  of  10,000  Venezuelan 
dollars,  and  was  at  that  time  rented  for  the  sum  of  150  Venezuelan 
dollars  per  month.  A  claim  is  made  for  $10,000  Venezuelan,  the  value 
of  the  house,  with  legal  interest  from  the  date  of  its  destruction,  and 
also  for  the  deprivation  of  the  rent. 

In  the  month  of  December,  1889,  de  Garmendia  presented  his  claim 
to  the  Venezuelan  Government  and  urged  its  payment.  It  is  insisted 
before  this  Commission  that  de  Garmendia's  claim  was  recognized  and 
acknowledged  by  the  Government  of  Venezuela  in  the  following  rec- 
ord in  the  ministrj^  of  the  treasury : 

[Translation.] 

Committee  of  Examining  Acknowledgment  of  Debts, 

Caracas,  27th  February,  1890. 
The  claim  of  Mr.  Carlos  G.  de  Garmendia,  amounting  to  four  hundred  and  thirty- 
one  thousand  five  hundred  (431,500)  bolivares,  having  been  examined  by  this  com- 
mittee, the  President  of  the  Kepubhc  orders  that  forty  thousand  (40,000)  bohvares 
be  paid  on  account;  let  the  corresponding  order  for  payment  be  taken  to  the  Sala  de 
Centralizacion.  The  words  "Perforate  it"  follows,  altered  to  the  words  "pay  it," 
without  being  removed;  and  file  this  record. 

The  President.  ,^   ^ 

Jose  M.  Laees. 

The  above-named  sum  of  40,000  bolivares  was  paid  to  de  Garmendia, 
in  acknowledgment  of  which  he  gave  the  following  receipt: 

Caracas,  February  26,  1891. 

I  have  received  from  the  Government  of  the  United  States  of  Venezuela  the  sum 
of  forty  thousand  (40,000)  bolivares,  as  follows: 

Four  thousand   (4,000)  bolivares   in   money,    and  thirty-six   thousand    (db,000) 
bolivares  in  titles  of  1  per  cent  monthly,  on  account  of  two  claims  I  have  presented, 
and  which  have  been  accepted  and  recognized  in  this  form: 
Value  of  'u:e  plant  in  La  Guayra,  destroyed  and  material  thrown  away,  in 

^pj.jl       "_ \  s.  10,  000 

Interest  to  date  for  ten  years  and  ten  months  at  3  per  cent  annual i  'Mnn 

For  the  rent  of  ten  years  at  Vs.  1,800. -         1«,  000 

Subsidy  on  the  balance  of  contract  for  steamers  between  New  York  and 

Venezuela,  1 1  months,  at  Vs.  4,000 I r'  nro 

Interest  at  3  per  cent  per  year  for  1 1  years  and  one  month 15,  0o9 

Total  Venezuelan  dollars 90,  767 

Received  on  account  te,n  thousand  dollars  (10,000),  described  as  above. 

(Signed)  Carlos  G.   de  Garmendia. 

Between  the  lines  the  word  "  been."  ,^ 

Correct:  C.  (t.  de  G. 

The  meaning  and  otlVct  of  {\\(^  record  above  quoted  is  open  to  some 
doubt.  Under  date  of  July  3,  1891,  de  Garmendia  made  a  request  of 
the  ministry  of  the  trcas'urv  for  a  certified  copy  of  this  record. 
Whereupon  the  "director  of'^iinance"  of  the  department  of  hacienda, 

S.  Doc.  317,  58-2 5 


66  REPORT  OF  ROBERT  C.  MORRIS. 

ill  oonipliaiH'O  with  the  foroo-oiiio-,  states  that  the  record  to  whieh  the 
proc(Hiiiio-  leproseiitatioii  of  Seilor  Carlos  (t,  de  Gariiiendia  refers,  is 
to  the  followinjj;'  ett'oet: 

CarU)s  G.  de  (Jarnicndia  claims  481, oOO  liolivars  as  principal  and 
interest  for  daniag-es  sutiered  under  the  contract  which  he  had  with 
the  Governnient  for  a  steamship  line  and  an  ice  plant.  As  Senor 
Garmendia  does  not  verify  this  claim  except  upon  his  statement,  the 
junta  believes  the  claim  inadmissable.  Continuino-,  there  is  a  note 
which  appears  to  be  in  the  writing-  of  Dr.  Juan  8.  Kojas  Paul,  which 
states  as  follows:  "Let  there  be  paid  on  account  of  this  claim  10,000 
dollars  in  notes." 

On  the  other  hand,  in  a  letter  to  Garmendia,  dated  August  21, 1893, 
Jose  M.  Lares,  who  signed  the  record  in  question  as  president  of  the 
board  of  inquiry  and  recognition  of  debts,  says  in  explanation  of  the 
wording  of  said  instrument: 

In  perforating  or  canceling  the  accounts  that  were  paid  that  word  was  undoubtedly 
put  upon  yours  without  noticing  that  it  had  not  been  paid  in  full,  but  that  part  of  the 
amount  of  your  claim  was  carried  on  account,  which  indicates  clearly  that  your  claim 
was  acknowledged  by  the  President  and  that  it  still  remained  pending  but  for  the 
balance. 

For  reasons  hereinafter  made  apparent,  the  Commission  is  not  dis- 
posed to  determine  the  claim  upon  an}^  technical  construction  of  this 
disputed  acknowledgment.  Upon  its  merits  the  claim  is  clear  enough. 
The  subsidy  contract  was  executed  on  the  part  of  Venezuela  by  Dr. 
Laureano  Villanueva,  who  is  described  in  the  instrument  as  "minister 
of  state  in  the  home  office  (of  the  federal  executive  of  the  United  States 
of  Venezuela)  fully  authorized  by  the  national  executive." 

Article  9  of  the  contract  provides  as  follows: 

The  Government  of  Venezuela,  in  consideration  of  the  advantages  which  the  oflB- 
cial  service  and  the  entire  country  will  have  from  this  way  of  communication,  binds 
itself  to  aid  the  enterprise  with  a  monthly  subsidy  of  four  thousand  (4,000)  vene- 
zuelanos,  which  will  be  handed  in  Caracas  to  Messrs.  Nevett  &  Co.,  the  consignee  of 
the  steamers. 

The  steamship  enterprise  commenced  operations  on  the  15th  day  of 
December,  1877.  The  (xovernment  of  Venezuela  paid  the  month  ly  sub- 
sidy until  January  1.5,  1879.  It  then  stopped  payments,  and  in  March 
following  notified  the  agents  of  de  Garmendia,  Messrs.  Nevett  &  Co., 
that  it  would  pay  them  no  longer. 

Article  11  provides: 

This  contract  will  be  in  full  force  for  the  period  of  two  years. 

The  contract  was  executed  Juh^  7,  1877.  It  expired  ))y  limitation, 
therefore,  on  July  7,  1879.  Froiai  January  5,  1879,  the  contract  had 
five  months  and  twent3^-two  days  to  run.  Its  breach  entitled  de  Gar- 
mendia to  the  amount  of  the  subsidy  for  this  unexpired  term. 

In  every  case  of  breach  of  contract  the  plaintiff's  loss  is  measured  by  the  benefit 
to  him  of  having  the  contract  performed;  and  this  is  therefore  the  measure  of  his 
damages.     (Sedgwick  on  Damages,  sec.  609.) 

The  amount  which  would  have  been  received  if  the  contract  had  been  kept  is  the 
measure  of  damages  if  the  contract  is  broken.     (Alder  v.  Keighley,  15  M.  &  W.,  117. ) 

On  January  9,  1880,  Messrs.  Hellmund  &  Co.,  the  agents  of  Mr. 
de  Garmendia  at  La  Guayra,  were  served  with  the  following  notice: 


REPORT  OF  ROBERT  C.  MORRIS.  67 

[Translation^ 

Caracas,  January  9,  1880. 
Messrs.  G.  Hellmund  &  Co.,  La  Guayra: 

Under  date  of  yesterday  the  citizen  minister  of  hacienda  says  to  this  office  what 
follows:  The  illustrious  American  having  been  informed  that  the  frame  house  used 
as  an  ice  depot  in  the  port  of  La  Guayra  greatly  prevents  the  employees  of  the  custom- 
house from  duly  watching  that  port,  he  has  thought  it  indispensable  to  destroy  it, 
in  order  to  leave  that  place  open;  and  he  has  ordered  me  to  address  myself  to  you 
to  please  indicate  the  means  conducive  to  the  fulfilling  of  the  indicated  proposal, 
advice  which  I  have  the  honor  of  participating  to  you  as  the  guardians  of  said  house, 
that  you  may  order  its  evacuation  as  soon  as  possible,  and  to  inform  this  office  what 
day  this  will  be  carried  out. 

(Signed)  P.  Arnal. 

The  ice  house  was,  therefore,  Dot  destroyed  until  some  time  in  Jan- 
uar}',  1880,  and  its  destruction  was  deemed  necessar}^  by  the  Venezuelan 
authorities  as  an  act  of  public  utility.  De  Garmendia  was  entitled  to 
compensation  for  the  actual  value  of  the  property  and  interest  thereon 
for  the  time  payment  was  wrongfully  delayed.  But  he  was  clearly 
not  entitled  also  "to  the  rent  which  forms  so  large  an  item  of  his  claim, 
and  which  is  included  in  the  amount  alleged  to  have  been  acknowedged. 
After  the  destruction  of  the  ice  house  by  the  Venezuelan  authorities, 
de  Garmendia  could  have  no  claim  for  being  kept  out  of  the  use  of  the 
property,  but  only  one  for  the  equivalent  value  of  the  property  in 
money  and  interest  thereon  for  the  time  he  was,  without  fault  of  his 
own,  kept  out  of  the  use  of  that  sum.     (Sedgwick,  sec.  316.) 

As  indicated  above,  this  claim  originated  in  the  years  1879  and  1880. 
Mr.  de  Garmendia,  however,  made  no  demand  upon  the  Venezuelan 
Government  for  its  adjustment  until  the  month  of  December,  1889. 
Can  Venezuela  be  justly  charged  with  interest  during  this  long  inter- 
val <  I  think  not.  The  delay  in  presenting  the  claim  is  not  satisfac- 
torily explained,  and  the  Government  was  not  in  default  until  it  at 
least  had  proper  notice  that  Mr.  de  Garmendia  was  asserting  his  right 
to  compensation. 

The  following  payments  have  been  made  upon  this  claim:  On  Feb- 
ruary 6,1891,  the  sum  of  $10,000,  as  evidenced  by  Mr.  de  Garmendia's 
receipt  of  that  date;  on  or  about  May  9,  1896,  the  sum  of  $1,000;  and 
on  or  about  January  15,  1898,  the  sum  of  $1,600  gold,  the  last  two 
payments  having  been  made  to  the  claimant  herein,  as  evidenced  by 
her  letter  to  Senator  McComas. 

In  view  of  the  foregoing,  allowance  will  be  made: 

(1)  For  the  unpaid  balance  of  subsidy,  the  sum  of  22,933.31  Vene- 
zuelan dollars. 

(2)  For  the  ice  house  at  La  Guayra,  the  sum  of  10,000  Venezuelan 
dollars. 

The  principal  sum  of  32,933.31  Venezuelan  dollars  will  bear  interest 
at  the  rate  of  3  per  cent  per  annum  from  December  2, 1889,  deducting 
the  amounts  paid.  On  this  basis  the  balance  due  on  December  31, 
1903,  the  anticipated  date  of  the  final  award  by  this  Commission,  is  the 
sum  of  30.538.19  Venezuelan  dollars  (venezolanos),  equivalent  to  the 
sum  of  $29,363.61:  in  gold  coin  of  the  United  States. 


68  REPORT  OF  ROBERT  (\  MORRIS. 

The    United  States   and  Venezuelan  Claini.s   Commission,   sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  ITnited  States  of  America  on  l)ehalf  of  Corinne 
H.  lie  (lannendia,  sole  leu-atee  of  Carlos  (i.  de  Garmeiidia,  claimant, 
against  the  Hepuhlic  of  Venezuela,  No.  3,  the  sum  of  twenty-nine 
thousand  three  hundred  sixty-three  and  ,"„\  dollars  (ti2|),3G3.C)4)  in 
United  States  gold  coin  is  hereby  awarded  in  favor  of  said  claimant, 
which  sum  shall  l)e  paid  by  the  (lovernment  of  Venezuela  to  the  Gov- 
ernment of  the  United  States  of  America  in  accordance  with  the  pro- 
visions of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  Ani<rint. 

J.  DE  J.  Paul, 
Co'.ntnissloiier  on  the  part  of  Venezuela. 
Attest  to  award: 

Haery  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Alolge, 

Secretary  on  the  pjart  of  the  United  States  of  America. 
Delivered  July  1,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  | 
of  the  Coro  and  La  Vela  Railway  Improve-  I 
ment  Company  of  Venezuela,  claimant,  {-No.  4. 

'V.  I 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  the  Coro 
and  La  Vela  Railway  Improvement  Company,  amounting  to  270,000 
bolivares,  with  interest  from  the  9th  of  February,  1898. 

The  Coro  and  La  Vela  Railwa}^  Improvement  Company  is  a  corpo- 
ration of  the  United  States,  organized  under  the  laws  of  the  State 
of  New  Jersey. 

The  claim  is  ])ased  upon  an  instrument  in  writing,  the  original  and 
translation  of  which  are  submitted,  liquidating  at  the  sum  of  270,000 
bolivares  the  subsidy  oldigations  of  the  Republic  of  Venezuela  to  the 
claimant.  This  liquidation  o])ligation  is  properly  certified  to  as  a  true 
copy  from  the  records  of  the  proper  department  of  the  Government 
of  the  Republic  of  Venezuela. 

The  claim  can  not  be  disputed.  It  is  based  upon  a  conceded  obliga- 
tion, proven  l)y  the  public  records  of  the  Venezuelan  Government. 


REPOKT  OF  ROBERT  C.  MORRIS.  69 

An  award  should  be  made  for  the  full  sum  of  270,000  bolivares  (about 
$54,000),  with  interest  from  February  9,  1S98,  that  is  to  say,  $62,596.80. 
There  can  be  no  dispute  as  to  the  right  of  the  claimant  to  interest 
upon  this  conceded  contractual  obligation. 

Respectfully  submitted.  Robert  C.  Morris, 

Agent  of  the  United  States. 

The  United  States  and  Venezuelan   Claims   Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  the  Coro  and  La  Vela  Railway  and  Im- 
provement Compan}^  claimants,  }-No.  4. 

V. 

The  Republic  of  Venezuela. 

DECISION  AND  AWARD. 

The  Commission  awards  to  the  claimants  the  sum  of  $61,104.70  in 
United  States  gold. 
Opinion  by  Doctor  Paul,  Commissioner. 

The  United    States    and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  the  Coro  and  La  Vela  Railway  and  Im- 
provement Companj^,  claimants, 
-y. 
The  Republic  of  Venezuela. 


\  No.  4. 


Doctor  Paul,  Comtnissioner : 

The  United  States  presents  the  claim  of  the  Coro  and  La  Vela  Rail- 
way and  ImprovementCompany,  amounting  to  the  sum  of  Bs.  270,000, 
with  interest  from  the  9th  day  of  February,  1898. 

The  Coro  and  La  Vela  Railway  and  Improvement  Company  is  a 
corporation  of  the  United  States  organized  under  the  laws  of  the  State 
of  New  Jersey,  as  is  evidenced  by  documents  presented  before  this 
Commission. 

The  claim  is  founded  on  the  following  facts,  which  appear  to  be 
proven : 

According  to  the  contract  made  on  the  12th  of  December,  1892, 
between  the  minister  of  public  works  and  Mr.  Manases  Capriles,  rati- 
fied by  Congress  on  the  20th  of  March,  1895,  for  the  construction  of 
a  steam  tramway  between  the  port  of  La  Vela  and  the  city  of  Coro. 
The  concesionair  was  granted  the  privilege  of  transferring  the  rights, 
conditions,  and  obligations  of  the  said  contract  to  any  national  or  for- 
eign corporation. 

According  with  a  decree  dictated  under  date  of  September  22,  1896, 
b}^  the  minister  of  public  works,  authorized  by  the  President  of  the 
Republic  and  the  vote  of  the  Federal  Council,  a  clause  was  added  to 
said  contract  granting  to  Manases  Capriles,  in  the  name  of  "  The  Coro 
and  La  Vela  Railway  and  Improvement  Company,"  a  subsidy  payable 
by  the  National  Treasury  of  Bs.  20,000  for  each  kilometer  of  tramway 
constructed  in  accordance  with  article  5  of  the  laws  on  railway  con- 
structions.    This  resolution  was  approved  by  the  Congress  of  the 


70  REPORT  OF  ROHERT  C.  MORRIS. 

KepuUlic  tho  ISth  of  M:iv,  ISKT.  and  ordorcd  to  bo  executed  the  24th 
of  the  .siiine  month. 

In  tlie  liquidiitioM  which  was  made  in  compliance  with  an  order  of 
the  minister  of  iJublic  works,  dated  the  9th  of  February,  1898,  by  an 
official  of  the  said  department,  in  view  of  the  report  presented,  by 
the  Engineer  Rafael  Nunez  Caures,  commissioned  by  the  Government 
to  take^'over  the  railway  between  La  Vela  and  Coro,  which  was  of  13i 
kilometers  properly  constructed;  that  upon  this  basis  the  li(piidation 
w^asmade  resulting-  in  13  kilometers  and  300  meters  of  road  at  Bs.  20, ()()<) 
per  kilometer,  or  in  all  Bs.  270,000,  in  favor  of  the  Coro  and  La  Vela 
Railway  and  Improvement  Compan\'. 

The  signature  of  the  official  who  authorizes  this  liquidation  is  authen- 
ticated bv  the  chief  recorder  of  the  Federal  District  under  date  of 
Februar^^lS,  1898. 

The  agent  of  Venezuela  has  acknowledged  before  this  Commission 
the  validity  of  this  claim  and  that  no  payment  has  been  made  to  the 
claimants  on  account  of  said  debt. 

With  reference  to  the  interest  demanded  in  this  claim,  it  appears 
that  the  claimant  company  has  not  been  guilty  of  laches  or  negligence 
in  urging  the  amount  due,  having  since  the  9th  day  of  February,  1898, 
through  the  Department  of  State  of  the  United  States,  used  its  best 
endeavors  to  collect  said  claim. 

In  vieW'  of  the  foregoing,  the  claim  of  the  Coro  and  La  Vela  Rail- 
road and  Improvement  Company  is  accepted  for  the  principal  sum  of 
Bs,  270,000,  with  interest,  which,  at  the  rate  of  3  per  cent  per  annum 
from  the  9th  day  of  February,  ]^98,  to  December  31,  1903,  the  latter 
being  the  anticipated  date  oi  the  final  award  by  this  Commission, 
amounts  to  Bs.  47,744.44.  On  this  basis,  and  figuring  the  exchange 
at  5.20  per  dollar,  the  total  amount  of  the  award  is  the  sum  of 
^61,104.70  in  gold  coin  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at  Cara- 
cas, Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  the  Core 
and  La  Vela  Railroad  and  Improvement  Company,  claimant,  against  the 
Republic  of  Venezuela,  No.  4,  the  sum  of  sixty-one  thousand  one 
hundred  four  and  ,Vo  dollars  ($61,104.70)  in  United  States  gold  coin 
is  hereby  awarded  in  favor  of  said  claimant,  which  sum  shall  be  paid 
by  the  Government  of  Venezuela  to  the  Government  of  the  United 
States  of  America  in  accordance  with,  the  provisions  of  the  convention 
under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  TJrdted  States  of  America. 

J.  DE   J.  Pai'l, 

Commissioner  on  thej^dft  r ,'  Venezuela. 
Attest  to  awara: 

Harry  Barge,  President. 
Attest: 

J.  Padson  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 

Secretary  on  the  jjart  of  the  United  States  of  America. 

Delivered  June  26,  1903. 


REl'ORT    OF    ROBPZRT.  ('.   MORRIS.  71 

Before  the  Mixed  Coiiiinis.sion  organized  under  the  protocol  of  Febru- 
ary IT,  19<>3,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America   ox  behalf  j 

of  the  Ames  Foundries,  claimants,  x- 

V.  ( 

The  Republic  of  Venezuela.       I 

BRIEF   ON   BEHALF   OF   THE   TTNITED    STATES. 

Tiic  United  States  presents  in  this  case  a  claim  for  damages  for 
breacli  on  the  part  of  the  Republic  of  Venezuela  of  a  written  contract 
with  the  claimant.  The  claimant  is  a  corporation  of  the  State  of 
iNIassachusetts,  and  a  citizen  of  the  United  States. 

There  can  be  in  this  case  no  dispute  as  to  the  evidence,  which  is 
documentar}'  and  of  such  a  nature  that  it  must  necessarih'  be  conceded. 
The  questions  presented  are,  first,  as  to  the  proper  interpretation  of 
the  contract,  and,  second,  as  to  the  measure  of  damages  for  its  breach. 

The  contract  is  evidenced  by  a  letter  oflering  to  cast  and  finish  four 
figures  in  bronze  for  the  sum  of  §4,000,  §500  of  which  has  already 
been  paid,  the  remaining  §3,500  to  be  paid — §1.000  on  comjjletion  of 
the  first  two  figures,  §1,000  on  the  completion  of  the  third  and  fourth, 
and  the  remaining  §1,500  on  delivery  free  on  ])oard  dock,  Kew  York. 

If  the  proposition  made  by  this  letter  had  been  accepted,  there 
could  be  no  doubt  but  that  the  position  of  the  Venezuelan  Govern- 
ment is  correct,  and  it  was  not  obligated  to  pay  the  balance  due  on 
the  contract  until  the  completion  of  the  statues;  but  the  telegram 
sent  by  the  Venezuelan  authorities  in  accepting  this  proposal,  accepted 
it  only  subject  to  certain  modification  as  to  terms  of  payment,  and  as 
this  modification  was  accepted  b^'  a  telegram  from  the  claimant,  the 
agreement  contained  in  these  telegrams  as  to  terms  of  the  pa3'ment 
takes  the  place  in  the  contract  of  the  provisions  in  the  letter.- 

The  contract  was,  therefore,  that  the  claimant  should  cast  and  finish 
four  statues,  the  Republic  of  Venezuela  to  pay  on  account  of  the 
work  §500  each  month  to  the  full  amount  of  §3,-500.  Four  such  pay- 
ments, amounting  to  §:^,000,  were  properly  made.  Thereupon,  in 
October,  1899,  the  Republic  of  Venezuela  defaulted  in  making  the 
payment  of  §500  due  that  month,  and  notified  the  Ames  Foundries 
that  it  could  not  or  would  not  make  that  payment. 

This  was  a  clear  breach  of  the  contract  on  the  part  <;f  the  Republic 
of  Venezuela. 

Upon  this  breach  of  the  contract  the  claimant,  the  Ames  Foundries, 
had  a  right  to  elect  to  go  on  with  the  work  and  complete  the  contract, 
and  claim  for  the  full  conti-act  price,  or  to  regard  the  contract  as 
broken,  and  claim  for  the  damages  for  the  breach. 

The  claim  as  presented  to  the  State  Department  of  the  United  States 
is  made  both  for  the  balance  due  on  the  contract  and  for  certain  ele- 
ments of  damage  arising  from  the  breach.  The  United  States  of 
America  does  not  think  the  claimants  are  entitled  to  this  measure  of 
relief,  and  in  that  spirit  of  equity  and  fairness  with  which  it  is  intended 
claims  shall  be  considered  and  determined  by  this  Commission,  it 
presents  the  claim  of  the  Ames  Foundries  only  to  the  following  extent: 

It  appear^s  that  at  the  time  of  the  breach  three  of  the  statues  were 
completed  and  that  work  had  been  commenced  to  the  extent  of  mak- 
ing the  sand  mold  for  the  fourth.     At  this  point  work  was  stopped. 


72  REPORT    OF.RoHEKr    l\    MORRIS. 

Tlio  claimant  is  tluMvt'oiH'  oiititU'd  to  ivoovor  l\)r  the  throe  ;tatues 
(."oniplotod.  in  tlio  sum  o^  ^o,(>(»0,  it  hoiiiii-  the  proportion  of  three- 
fourths  of  the  oonti-iU't.  Of  this  sum  Si\riOO  has  l)oon  paid;  ^oOO  in 
the  aUowant'o  made  for  a  previous  payment  of  tlie  same  kind,  made  to 
the  predecessor  of  the  eh\imant,  and  ^2.000  in  cash,  leaving  a  balance 
due  on  the  contract  price  for  tiiese  three  statutues  of  ^500. 

Chiimant  is  also  entitled  under  the  contract  to  the  sum  of  §^140,25 
on  account  of  the  increase  in  the  price  of  copper.  The  claimant  is 
also  entitled  to  recover  for  any  damage  arisino-  for  work  done  on 
account  of  the  fourth  statue,  which  a})pears  from  the  evidence  con- 
sisted in  makino-  the  sand  mold  at  an  expense  of  ^235,  making  a  total 
of  ^8lH.l\")  in  tlu>se  three  items. 

Claimant  is  also  entitled,  as  a  further  element  of  damage,  to  profit  it 
would  have  made  if  it  had  heen  permitted  to  go  on  and  complete  the 
fourth  statue  under  the  contract.  The  evideme  in  this  respect  shows 
that  the  profit  would  have  been  ^:218.75,  bringing  the  total  claim  of 
the  Ames  Foundries  to  the  sum  of  ^1.100. 

We  submit  that  the  equity  of  the  situation  requires  an  award  in  this 
case  in  the  sum  of  $1,100.  with  interest  from  March  2.  lltol.  at  which 
time  the  claim  was  presented  by  the  United  States  authorities  to  the 
Government  ()f  Venezuela — tliat  is,  to  June  1.  1903,  or  ^1. 174.01. 

Respectfully  submitted. 

Robert  C  Morris. 
Ageiif  of  the  Unittd  States. 


Gran  Hotel,  June  27,  1903. 

The  Honorable  the  Secretary  of  State, 

Wa)<h!n(itoiu  D.  C. 

Sir:  At  the  sessiiin  of  the  United  States  and  Venezuelan  Claims 
Connnission  on  the  2Hd  instant  the  agent  of  Venezuehi  announced  to 
the  Commission  that  his  Ciovernment  would  prefer  to  carry  out  the 
contract  originally  entered  into  with  the  Ames  Foundries  Company 
than  to  let  the  matter  proceed  before  the  Conmiission.  and  stated  that 
his  Government  would  make  a  written  proposition  to  that  etiect. 
The  Commissii»n  decided  that  in  fairness  to  both  parties  it  would  be 
well  to  have  this  proposition  submitted,  and  consetpiently  rule  that 
peniling  the  rejection  or  acceptance  of  the  proposition  by  the  (lovern- 
ment  of  the  United  States  no  prejudice  should  accrue  to  the  Republic 
of  \'enezuela  in  relation  to  the  claim  under  the  rules.  This  refers,  of 
course,  to  the  time  for  an  answei*  on  behalf  of  ^'enezuela. 

The  (xovei-nmentof  \'enezuela.  through  its  minister  of  public  works, 
has  presented  to  me  the  proposition,  which  1  herewith  inclose,  for  such 
action  as  the  Department  may  deem  proper. 

The  claim  made  by  the  United  States  on  behalf  of  the  Ames  Found- 
ries is  for  ^1,100  on  the  statement  of  the  claimant  dated  May  5,  1003. 
You  will  notice  that  the  proposition  herewith  inclosed  contemplates 
the  allowance  of  S2oO  for  tlie  sand  mold  and  ^1.500  for  the  completion 
of  the  contract.  The  original  contract  provided  for  a  payment  of 
^3.500,  to  be  paid  Si, 000  on  completion  of  the  first  two  figures,  ^1.000 
on  completion  of  the  third  and  fourth,  and  the  remaining  ^1.500  on 
delivery  free  on  board  dock  in  New  York.  This  contract  was  modified 
by  the  Government  of  Venezuela  in  the  telegram  which  provided  that 


liKI'oirr    ol'    l{<tUKRT    ('.   MoRKlS.  7'^ 

ni()iillil\    |);i\  incuts  of  ifi.^OO  ciicli  slioiilil  Itr  iii;i(lc;   !#!j!,()0(»  li:i(l  l)c<-ii  |)iii<l 
oil  this  colli  nicl  wlicii  (lie  bi-cucli  occmrcd. 

I  respect  riill\  ciill  your  iitlciitioii  to  the  \'iu-i  (liiit.  tlic  proposition 
speiiks  of  "•(lolliiis/'  It  is  not.e\i(leiice  wlielliei-  this  is  to  he  ii  piiynicnt 
in  o-o|(|  or  in  i'lieites,  hilt-  it  is  to  he  ])resiime(l  th:it,  ])!iv!iient,  in  ooM  is 
intended.  'I'he  |)ro|)osit  ion  iilso  |)i'o\'i(h'S  that  the  iKiyinent  shidi  not 
he  iiiiuh'  mdil  the  Ames  l^'oiindiies  hiuc  completed  their  vvoilv.  More- 
over, there  is  no  provision  I'oi'  ii.  deposit  of  tlie  $l,7r>0  or  any  detinite- 
arriiiij^cmeiit  hy  vvliich  ])aviiie*nt  would  he  assured. 

1  i-espectfllHy  re((uest,  tliat-  t  he  |)ej)ait  ineiit  inst  met  me  hy  cahle  as 
to  tJie,  iicceptaiice  or  rejection  of  the  proposition. 

I  have,  the  honor  t-o  he,  sir. 
Very  respectfully,  yours, 

RoBKllT   ('.   MoURIS, 

Af/r/i/  of  I  lit'  United  StatcH. 


I'l'niMvlMliiiii.l 

UnITKI)    S'l'ATKS    OK   Vk.NKZIJKLA, 

MiNISTKV    01-'    I'UHLK!   W'oiJKH, 

Cam, -as,  J,i„r':i7,  I!JO:i. 
Mr.  KoiiKin'  ('.  Mouuih, 

Ai/nd  for    I  lie    UitiUd   Sidles   hcfarr    I  he    Ve)i.ezi(elii  n-  Aiiier!e<(ii 
Mixed   CoiieiiussHin ^  /ireseiil. 

Silt:  In  order  t,o  settle  the  matter  reialiii;^-  to  the  monument  of 
(lolumhus  conce in inj^-  which  the  Ames  l^'ounclries  ( 'ompany  has  pre- 
sented a  claim,  the  (Jovernment  is  disposed  to  pay  said  <4eiitleineii  tlu^ 
sum  of  $iir>()  for  the  value  of  the  mold  which  iJiey  claim  to  have  lost, 
and  ^1,500  as  IIk^  halarice  of  their  coiitraet.  IJoth  sums  will  he  deliv- 
ei'ed  to  the.  Ames  b'oundries  ('ompany  as  soon  as  the  consul  of  Vene- 
zuela in  N<'vv  York  informs  the  (Jovernment  that  the  monument  has 
heen  completed  in  conformity  with  the  contract. 

I  am,  Mir,  with  all  eorisidei'ation. 
Your  ohedient  servant, 

It.    (  'aS'I'II-LO    (  'llAI'KI.liN. 


I  )i;i'Airi'MKN'r  oi'  S'iai'i;, 

\\'<ls/,i,Hjlnn,  Jiihj   II,,    I'.Hll. 
ilol'.KIlT    (!.    MoiMMH,    Ks<|., 

A(/eiU  (if  l/ie  I'll/led.  tSlfUes^   < 'arUcHK^    I'e/ie.^Uelt/. 
Silt:    I    have  to  acknowledge,  the  re,ce,ij)t  of  your  letter  of  thetiVth 
ultimo,  in  rej^ard  to  the  claim  of  the  Ames  l^'oiindries. 

y\  copv  of  your  letter  wa.s  H(!nt  to  the  claimants,  with  an  incpiiry  as 
to  what,  action  (hey  (h'sired  to  take. 

A  copy  of  their  reply  is  inclosed  foi-your  infoi-mation  and  {guidance. 
-  Rcd'erence  is  also  made  to  the  I  )epartMi(^nt,\s  telegram  of  t.o-day's 
(iat.e. 

I  am,  sir,  your  ohe<lient,  servant, 

AiAKv   A.  Adkk, 

Seeoird  AnKi.Hliliil  Seereltifi/. 


74  REPOliT    OF    UOIJKKT    ('.    MORRIS. 

Ames  Founduies, 
CJdcopee,  J/r^w.,  Jahj  10,  1903. 

Tlu'  lioiionihio  the  Sechetaky  of  State, 

Siu:  We  are  pleased  to  ackn()wledo-(>  i-eeeipt  of  3'our  ronmmnication 
of  fJuly  S,  ii)clo.sino-  cop}-  of  letter  received  by  your  Depart nieiit  from 
Kohert  C.  Morris,  ag-ent  for  the  United  States  l)efor{>,  the  Venezuelan 
Aiuerii-an  Mixed  Commission.  Also  inclosing  translation  of  letter 
received  l)y  Agent  Morris  from  the  minister  of  pulilic  works  of  United 
States  of  Venezuela,  to  which  we  beg  leave  to  reply  as  follows: 

We  judge  from"  this  connnunication  that  it  is  the  wish  of  the  Gov- 
ernment of  Venezuela  that  we  linish  the  contract  for  the  four  bronze 
statues  for  the  monument  of  Columbus  for  Caracas  on  its  original  lines. 
To  this  we  are  willing  to  agree,  but  we  want  the  original  lines  of  the 
contract  clearly  understood,  which  does  not  seem  to  be  the  case  at 
present  we  think. 

The  original  contract  made  by  the  writer  of  this  letter  with  the 
consul-general  in  New  York  was,  that  we  were  to  make  these  bronze 
figures  for  the  sum  of  $8,500.  This  contract  price  was  based  on  the 
price  of  copper  the  day  the  contract  was  made,  January  12,  1899,  and 
it  was  specially  agreed  that  should  the  price  of  copper  advance  between 
the  above  date  and  the  time  when  the  Venezuelan  Government  should 
accept  our  contract,  and  we  were  at  liberty  to  go  ahead  and  complete 
the  same,  then  we  should  be  allowed  the  difference  between  these 
prices.  Of  course  when  w^e  take  a  I'ontract  at  a  set  sum  in  order  to 
protect  ourselves  we  contract  for  the  material. 

The  price  of  copper  advanced  $4.87^  per  hundred  pounds,  the 
bronzes  to  be  made  by  us  weighed  3,000  pounds,  which  at  $4.87^  per 
hundred  amounts  to  |i46.25.     This  makes  the  contract  as  follows: 

Amount  originally  agreed  upon 13,  500.  00 

Advance  in  price  of  copper,  as  explained .' 146.  25 

Lost  labor  on  one  statue  as  explained 235. 00 

.3,881.25 
Credit  cash  received - 2,  000,  00 

Balance  due  us  (and  gold  is  understood) 1,  881.  25 

To  which  we  think  should  be  added  interest. 

We  are  perfectly  willing  and  anxious  to  complete  the  contract,  and 
if  the  Venezuelan  Government  will  deposit  the  amount  due  us  on 
completion  of  our  part  of  the  contract  with  some  reputable  party  in 
this  countr}'  where  we  can  get  at  it  when  we  have  done  our  part,  we 
will  guarantee  to  have  our  part  of  the  contract  fully  carried  out  in 
thirty  days  from  date  of  our  knowing  that  such  deposit  has  been  made, 
and  what  we  understand  to  be  our  part  of  the  contract  is,  that  the 
four  bronze  figures  for  the  Venezuelan  Caracas  monument  are  to  be 
by  us  delivered  f.  o.  b.  New  York,  all  charges  paid,  suitably  boxed 
for  sea  shipment. 

Yours,  ver}^  truly, 

Ames  Foundries,  • 
J.  C.  Buckley. 


REPORT  OF  ROBERT  C.  MORRIS.  75 

Gran  Hotel,  August  22,  1903. 
The  honorable  the  Secretary  of  State. 

Sir.:  In  relation  to  the  claim  of  the  Ames  Foundries,  No.  5,  1  have 
the  honor  to  inclose  herewith  the  final  proposition  of  the  Government 
of  Venezuela  for  the  adjustment  of  this  matter  outside  of  the  Connnis- 
sion.  This  letter  substantially  meets  the  proposition  of  the  Ames 
Foundries  except  as  to  the  item  of  interest. 

I  respectfully  request  that  the  Department  of  State  notify  the  leg-a- 
tion  of  the  United  States  at 'Caracas  as  to  the  final  decision  of  the 
Ames    Foundries,  with   instructions    to   advise  the    United   States- 
Venezuelan  Claims  Commission. 
Respectfully,  yours, 

Robert  C.  Morris, 

Agent  of  the  United  States. 


[Translation.] 

No.  SO-IO.]  Office  of  the  Ministry  of 

Public  Works,  Venezuela, 

Caracas,  August  18,  1903. 
Mr.  Robert  C.  Morris, 

Agent  for  the  United  States  in  the 

Venezuelan- American  Mixed  Commission,  Present. 

Sir:  I  have  taken  into  consideration  the  answer  of  Messrs.  Anies 
Foundries  to  the  proposition  which,  by  the  honorable  intermediation 
of  yourself,  I  addressed  them  in  the  name  of  the  Government,  for  the 
completion  of  the  monument  to  Columbus. 

The  Government  agrees,  in  order  to  settle  this  matter  once  and  for 
all,  to  pay  Messrs.  Ames  Foundries  the  sum  of  one  thousand  eight 
hundred  eightv-one  dollars  and  twenty-five  cents  American  gold  (G. 
11,881.25)  without  interest,  which  they  ask,  for  the  delivery  of  the 
monument  completed;  and  to  this  end  the  Goverement  will  order  the 
Bank  of  Venezuela  to  deposit  in  New  York  said  sum,  with  the  object 
that  it  may  be  delivered  to  Messrs.  Ames  Foundries,  upon  these  latter 
advising  the  consul  of  Venezuela  in  said  city  that  they  have  completed 
the  statues,  in  entire  accord  with  the  contract,  and  after  having  heard 
the  judgment  of  a  commission  of  artists  named  by  mutual  accord  by 
the  consul  and  Messrs.  Ames  Foundries,  in  order  that  they  may 
examine  and  report  concerning  the  merit  of  the  works. 

Although  I  believe  that  this  proposition  will  entirely  meet  'the 
wishes  of  Messrs.  Ames  P\)undries,  I  beg  of  you  to  advise  rac  of  their 
acceptance,  to  the  end  that  the  necessary  orders  may  be  given  with 
respect  to  the  obligation  of  the  Government. 

With  all  considei'ation,  I  am,  sir, 

Your  obedient  servant,  R.  Castillcj  Cupellin. 


Ames  Foundriks, 
Chicopee,  Mass. ,  September  9,  1903. 
State  Department,  ~\Y(i^hhigton,  D.  C. 

Gentlemen:  Yours  of  the  r)th,  with  inclosures,  at  hand,  and  we 
accept  the  proposition  of  the  Government  of  Venezuela  as  stated  in 
theirs  of  August  8,  a  translation  of  which  you  sent  us.     We  will  at 


76  KEPOKT    OK    liOHKRT    C.    MORRIS. 

ouco  coininonco  on  tlio  ivinaiiiino-  liourc,  that  there  may  be  as  little 
delay  as  possible.  As  this  (iovernment  has  had  an  allowance  made 
them  of  some  ^700  on  this  same  work,  and  as  we  were  oblioed  to  bor- 
row mone}''  because  of  their  failure  to  do  as  agreed,  we  do  not  think 
they  are  entitled  to  be  allowed  this  interest,  but  we  feel  that  we  must 
allow  it  notwithstandino-  w^^  can  not  aliord  to  lose  this  amount  that  we 
feel  to  be  actually  our  due.  Our  only  hopes  are  that  they  will  not 
only  see  the  justice  of  our  claim  when  they  come  to  write  the  check 
for  us,  but  that  they  will  consider  that  we  have  been  more  than  fair, 
ind  when  in  want  of  further  bronze  work  they  will  remember  that  we 
made  the  follow ino-  pieces  of  statuary  for  their  country,  \iz:  Standing 
figures  of  General  Urdenita-Columbus,  (Tcneral  Bolivar,  and  the  eques- 
trian statue  of  Marshal  Lucre.  We  thank  your  Department  for  your 
kind  offices  in  this  matter  and  beg  to  remain. 
Very  truly,  yours, 

Ames  Foundries, 
J.  (I  Buckley,  Proprietor. 

The  United    States  and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  "j 
of  The  Ames  Foundries  Company,  claimant,     1  (^i^im  No   5 
V.  I 

The  Republic  of  Venezuela.  J 

DECISION. 

By  the  Commission: 

The  Commission  disnusses  the  claim  without  prejudice. 
December  9,  1903. 

The   United   States  and  Venezuelan   Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 
of  The  Ames  Foundries  Company,  claimant,     [  q^^^^  ^^   5^ 
v.  I  "     ' 

The  Republic  of  Venezuela.  J 

DECISION. 

A   settlement  of    the   alcove-entitled   claim   having  been   effected 
between  the  parties  pending  its  submission,  the  said  claim  is  hereby, 
without  prejudice,  dismissed. 
Delivered  December  9,  1903. 

William  E.  Bainbridge, 
Commissioner  071  the  part  of  the  United  States  of  America. 

Carlos  F.  Grisanti, 
Commissioner  on  the  part  of  Venezuela. 

Attest  to  award: 

Harry  Barge,  President. 

Attest: 

Eduardo  Calcano  Sanavria, 

Secretary  o)i  t lie  part  <f  Venezuela. 

Rudolf  Dolge, 

Secretary  on  tliepKirt  (f  the  United  States  <f  America. 


REPORT  OF  ROBERT  C.  MORRIS.  77 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

arj^  IT,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 

of  Emerich  Hen,v,  claimant,  \^^   ^ 

r.  I 

The  Republic  of  Venezuela.  < 

brief  on  behai.f  of  the  united  states. 

1. 

STATEMENT   OF    FACT. 

In  this  case  the  United  States  presents  the  claim  of  Emerich  Heny 
for  forced  loans  and  destruction  of  propert}^  during-  the  revolutions  of 
1892  and  1899,  amounting  in  the  aggregate  to  $29,925.11,  and  interest 
amounting  to  $8,789.19. 

Emerich  Heny  is  a  naturalized  citizen  of  the  United  States  who  has, 
since  the  year  1874,  resided  and  been  engaged  in  business  in  Venezuela. 
In  the  year  1883  he  married  Bertha  Benitz,  one  of  the  heirs  of  Carlos 
Benitz,  which  heirs  were  the  owners  of  a  sugar  plantation  near  Caracas. 
Under  a  contract  with  the  heirs,  a  certified  copy  of  which  from  the 
records  is  in  evidence,  Mr,  Heny  took  over  the  management  of  said 
plantation  and  conducted  the  same  with  his  individual  capital.  He 
presents  two  claims  against  the  Government  of  Venezuela.  One  for 
forced  loans  and  property  taken  during  the  revolution  of  1892.  This 
claim  was  in  1893  presented  as  a  claim  on  behalf  of  the  heirs  of  Carlos 
Benitz  to  the  Venezuelan  Government  and  full  and  due  proof  made  of 
the  amount  of  the  claim  to  the  extent  of  $27,617.91.  The  remaining 
portion  of  the  total  claim  is  the  basis  of  a  second  claim  and  arises  from 
the  taking  of  forage  and  sugar  cane  during  the  revolution  of  1899. 

II. 

The  evidence  shows  that  Mr.  JRmy  is  and  has  continued  to  he  a  citizen 
of  the  United  States. 

The  evidence  on  this  subject,  as  to  which  there  can  be  no  contro- 
versy, is  that  Mr.  Heny  was  naturalized  on  October  15,  1872,  by  the 
superior  court  of  the  city  of  New  York;  that  he  went  to  Venezuela  in 
1874  as  the  local  representative  of  several  American  houses,  and  that 
he  has  continued  to  act  as  such  representative,  and  such  is  and  has  been 
the  primary  cause  of  his  stay;  that  his  relation  to  these  American 
houses  has  continued  as  such  down  to  the  date  of  the  claims.  Letters 
and  aliidavits  from  the  various  American  houses  whose  representative 
he  is  ai'e  in  evidence  suppoiling  this  position. 

There  can  be  no  question  that  Mr.  Heny  was  a  citizen  of  the  United 
States  at  the  time  th(;  claims  arose, 

III. 

The  evidence  clearly  supports  the  amount  claimed. 

So  far  as  concerns  the  forced  loans  and  cattle  and  other  property 
taken  during  the  revolution  of  1 892,  the  memorial  and  exhibits  attached 


78  REPORT  OF  ROBERT  C.   MORRIS. 

!>ot  forth  the  prcsontiition  of  this  caso  to  the  Vcnezuohin  (Tovcrnmcnt 
and  the  takino-  of  amply  sufficient  testimony  at  that  time  to  support 
the  chiims.  Certified  copies  in  Spanisli  and  ti-anslations  thereof  of  tliis 
testimony'  are  presented. 

As  to  the  second  claim  for  sugar  cane  taken  during  the  revolution 
of  1891>,  the  evidence  consists  of  the  sworn  statement  of  Mr.  Ileny, 
both  in  the  memorial  and  in  his  affidavit  of  -July  25,  IDOl,  and  the  affi- 
davits of  Nicanor  Acosta  and  Pedro  KegahMlo  Montes  de  Oca,  verified 
before  INlr.  Russell,  the  secretary  of  the  United  States  legation,  on  the 
9th  of  ]\Iarch,  1001. 

Under  the  rules  of  evidence  governing  such  arbitration  tribunals  as 
this  there  can  be  no  question  as  to  the  competency  of  this  testimony 
by  letters  and  affidavits.  See  the  opinion  of  Judge  J.  C.  Bancroft 
Davis,  15  Court  of  Claims  Reports,  546,  as  follows: 

In  the  means  by  which  justice  is  to  be  attained,  the  court  is  freed  from  the  technical 
rules  of  evidence  imposed  by  the  common  law,  and  is  permitted  to  ascertain  truth 
by  any  method  which  produces  moral  conviction.  This  proposition  is  self-evident. 
The  restraints  which  municipal  law  imposes  ujion  the  taking  and  use  of  evidence 
vary  greatly  in  different  countries.  In  its  broadest  sense  the  word  evidence  includes 
all  means  by  which  any  alleged  fact,  the  truth  of  which  is  submitted  to  examination, 
maybe  established  or  disproved.  (1  Green.  Ev.,  sec.  1.)  If  it  were  necessary  to 
justify  the  granting  of  such  wide  powers  to  the  conmiissioners,  it  would  be  easy  to  do 
so.  Internationaltribunals  always  exercise  great  latitude  in  such  matters  (Meade's 
case,  2  0.  Cls.  R.,  271)  and  give  to  affidavits,  and  sometimes  even  to  unverified 
statements,  the  force  of  depositions. 

Article  II  of  the  protocol  und^r  which  this  Commission  was  formed, 
moreover,  expressly  extends  the  consideration  of  the  Commissioners  to 
any  documents  or  statements  which  may  be  presented  to  them  by  or 
on  behalf  of  the  respective  Governments. 

There  can  also  be  no  question  as  to  the  sulficienc}^  of  this  evidence 
to  establish  the  amount  of  the  claims. 

IV. 

The  evidence  clearly  ivarranU  the  finding  that  Mr.  Kmerlch  Ileny  is 
the  owne9'  of  these  claims. 

The  evidence  is  that,  upon  his  marriage  in  1883,  Mr.  Heny  took  over 
the  management  of  this  plantation  and  thereafter  conducted  the  same 
and  carried  on  the  business  with  his  own  capital.  On  the  1st  day  of 
May,  1892,  a  written  assignment  was  made  to  him  by  all  the  heirs  of 
Carlos  Benitz,  conveying  to  him  in  substance  the  usufruct  of  this  plan- 
tation in  consideration  of  his  advances  of  capital  and  conduct  of  the 
business.  This  assignment  was  prior  to  the  happening  of  either  of 
the  wrongs  complained  of.  These  facts,  taken  together,  clearly  show 
that  Mr.  Heny  was  operating  and  conducting  this  plantation  and  that 
he  is  the  person  injured  by  the  wrongs  complained  of.  The  only 
basis  of  a  contrary  contention  could  be  that  the  claim  which  was  made 
in  1893  against  the  Venezuelan  Government  was  made  by  him  nomi- 
nally as  agent  of  the  heirs  of  Carlos  Benitz,  as  though  they  were  the 
beneficial  parties.  Mr.  Heny  swears  in  his  memorial  that  this  was  a 
mistake  in  the  fact,  and  the  written  assignnient  of  May  1,  1892,  from 
the  heirs  of  Carlos  Benitz  to  him  amply  supports  his  position  in  this 
regard. 


REPOET  OF  ROBERT  C.  MORRIS.  79 

V. 

There  can  he  no  queathm  as  to  the  h'ahilitij  < if  the  Venezuelan  Govern- 
ii'ient  upon  this  claim. 

The  principle  is  well  settled  that  if  a  revolution  subsequentlv 
becomes  the  government  of  the  country,  it  will  be  regarded  as  a  de 
f  ecto  government  even  prior  to  the  time  it  succeeds  in  tirml y  establish- 
ing itself,  at  least  so  far  as  to*  make  the  government  liable  for  con- 
tracts properly  made  or  acts  done  by  such  de  facto  government.  On 
the  other  hand,  there  is  the  equal  liability  on  the  part  of  the  govern- 
ment for  similar  acts  on  the  part  of  the  government  troops  who  still 
had  authority  to  and  were  acting  as  the  representatives  of  the  estab- 
lished government.  The  authorities  are  equally  well  settled  as  to  the 
liability  of  the  government  for  forced  loans  or  for  propertv  taken  for 
the  use  of  troops  under  circumstances  such  as  those  in  this  case. 

In  support  of  this  proposition  it  is  only  necessary  to  refer  to  the 
cases  which  have  arisen  before  different  arbitral  commissions  collated 
bv  Moore,  fourth  volume  of  his  work  on  International  Arbitrations. 
As  to  forced  loans,  the  cases  are  collated  at  pages  3409  to  34:22.  They 
show  a  uniform  holding  of  liability  on  the  part  of  the  government  for 
such  forced  loans  save  and  except  in  the  single  case  of  imposition  of  a 
general  forced  loan  upon  all  the  citizens  of  a  communit}'.  Such  is  not 
the  fact  in  this  case,  as  these  were  especial  and  direct  forced  loans  from 
Mr.  Heny,  evidenced  bv  receipts  given. 

As  to  the  liability  for  the  appropriation  of  property,  the  taking  of 
cattle,  or  other  injury  to  property  during  the  conduct  of  a  war,  the 
authorities  are  collated  at  pages  3714  et  seq.,  fourth  volume  of  Moore's 
work,  above  referred  to. 

AYhile  a  government  may  not  be  liable  for  the  destruction  of  prop- 
erty which  is  desteoyed  as  a  necessary  incident  to  war,  the  cases 
uniformly  hold  that  it  is  liable  for  property  taken  voluntarilv  for  the 
purpose  of  carrying  on  the  war,  whether  for  the  general  purposes  of 
the  war  or  for  the  support  of  troops,  or  even  for  the  preventing  of  such 
supplies  falling  into  the  hands  of  the  enemy.  In  this  case  the  prop- 
erty appears  to  have  been  taken  for  the  use  of  the  troops  by  proper 
authorities.  It  was  taken  voluntarily,  and  it  is  not  a  case  of  property 
incidentally  or  accidentalh^  destroyed  during  the  progress  of  the  war. 
This  is  so  even  with  regard  to  the  damage  alleged  in  the  second  claim 
of  Mr.  Heny.  Whereas  there  may  have  been  some  destruction  of 
property  and  injury  to  his  plantation  during  the  progress  of  the  battle 
that  took  place  upon  one  part  of  it,  it  is  clear  from  the  evidence  that 
the  claim  which  was  made  is  limited  to  the  value  of  the  sugar  cane  and 
other  propert}'  taken  foi"  the  sustenance  of  the  troops  during  the  time 
of  their  encampment  prior  to  and  after  the  battle,  and  not  for  any 
such  propeily  destroyed  as  an  incident  of  the  battle  nor  even  as  an 
incident  to  the  encampment. 

There  can  be  no  question,  under  the  uniform  line  of  decisions  in 
such  cases,  that  the  Venezuelan  Government  is  liable  to  Mr.  Heny  for 
the  full  amount  of  his  claim. 


80  REPOKT  OF  ROBERT  C.  MORRIS. 

VI. 

The  con-cctiuas  of  the  daiinqf2fi'.  Etnerich  Ileny  and  lU  JtahUiiij 
thei^efor  have  been  practically  conceded  by  t he  Venezuelan  Government. 

This  claim  was  the  subject  of  diplomatic  correspondence  between 
the  (Jovernment  of  the  United  States  of  America  and  that  of  the 
ivcpublic  of  Venezuela  in  which  the  claim  in  its  present  condition  with 
all  documentary  matter  was  submitted  to  the  Government  of  Vene- 
zuela for  a  settlement.  The  reply  of  the  Government  of  Venezuela 
to  the  representative  of  the  Government  of  the  United  States  can  be 
regarded  in  this  case,  as  in  all  similar  ones,  as  equivalent  to  an  answer 
on"  behalf  of  the  Venezuelan  Government  and  as  an  admission  of  all 
the  facts  v'h.lch,  are  not  ej^ressly  controverted. 

For  answer  in  this  case  the  Venezuelan  Government  simply  refers 
to  the  position  taken  by  it  in  the  case  of  Ford  Dix,  in  which  case  its 
position  was  that  the  claim  should  have  been  and  should  be  submitted 
to  its  local  tribunals  for  adjudication.  The  fact  remains  that  the 
Venezuelan  Government  does  not  in  this  case  dispute  the  truth  of  any 
of  the  facts  set  forth,  the  correctness  of  the  amount  claimed,  nor  its 
own  liability  therefor. 

VII. 

The  positioyi  of  the  Venezuelan  Government  that  this  claim  shoidd 
have  hee/i  suhn'itted  to  its  local  trihunals  for  adjudication  is  not  v:ell 
founded. 

Without  in  any  way  controverting-  the  truth  of  any  of  the  state- 
ments on  which  this  claim  is  based  or  the  correctness  of  the  amount 
claimed  or  its  own  liability  therefor,  the  authorities  of  the  Republic 
of  Venezuela  contended  merely  that  the  Government  of  the  United 
States  ought  not  to  intervene  because  the  claimant  had  a  proper  and 
sufficient  remedy  in  the  local  tribunals  of  that  country.  This  position 
of  the  Republic  of  Venezuela  was  wholly  untenable.  The  cases  in 
which  one  State  has  the  right  to  intervene  to  protect  the  rights  of  its 
citizens  resident  or  temporarily  within  the  domain  of  another  State 
fall  into  two  general  classes.  The  first,  cases  in  which  the  citizens  has 
received  positive  maltreatment  at  the  hands  of  the  foreign  govern- 
ment or  those  for  whom  it  is  directly  responsible.  The  second,  cases 
in  which  the  citizen  has  been  denied  ordinary  justice  in  the  foreign 
country.  In  this  latter  class  a  distinction  again  is  to  be  made  between 
cases  of  a  denial  of  justice  in  actions  against  the  foreign  government  as 
such  and  those  between  individuals  to  such  an  extent  that  the  foreign 
government  may  be  held  responsible. 

The  right  of  Intervention  in  the  first  class  of  cases  is  direct  and 
immediate  and  there  is  no  necessity  for  resort  to  local  tribunals  as  a 
condition  precedent  to  an  application  to  the  home  government. 

The  wrongs  here  complained  of,  arising  from  the  obtaining  of  forced 
loans  and  the  taking  of  property  by  the  troops  of  the  Government  and 
the  revolutionary  party  that  has  since  established  itself  as  the  Govern- 
ment, makes  the  case  clearly  one  of  this  first  class. 

Even  if  we  were  to  concede  that  the  claims  were  of  such  a  character 
as  ought  to  be  first  submitted  before  a  local  tribunal  for  adjudictition, 
yet  the  Republic  of  Venezuela  is  not  in  a  position  to  call  for  such  sub- 


EEPORT  OF  ROBERT  C.  MORRIS.  81 

mission.  The  decree  of  1<S73,  establishing  a  high  federal  court  before 
which  all  claims  against  the  Government  must  be  adjudicated  contains 
provisions  which  make  the  latter  procedure  practically  a  denial  of 
justice.  It  is  provided  in  substance  in  that  decree  that  should  it  clearly 
appear  that  any  claimant  has  exagerated  the  injuries  suffered  by  him, 
he  shall  lose  whatever  right  he  may  have  had  and  incur  a  fine  of  from 
500  to  3,000  venezolanos  (-foOO  to  |3,000)  or  imprisonment  from  six  to 
twent^'-four  months.  The  letter  of  the  Venezuelan  authorities  in 
citing'  the  rendition  of  this  decree  preceded  with  the  statement  that  in 
1S69,  a  report  was  made  to  the  Venezuelan  Congress  that  the  revenues 
of  the  country  were  being  consumed  in  the  pa}  ment  of  foreign  claims 
and  calling  upon  Congress  for  some  remedy  in  the  situation.  This  con- 
nection makes  it,  upon  their  own  statement,  manifest  that  this  decree 
w^as  devised  in  its  present  form  as  an  express  means  of  preventing 
foreigners  from  instituting  or  prosecuting  claims  against  the  Venezu- 
elan Government.  This  was  its  origin  and  spirit  and  such  has  been 
its  manifest  effect. 

It  would  be  useless  to  discuss  this  situation  further.  It  is  clear  that 
a  court  so  established  and  the  right  of  appeal  to  which  it  was  coupled 
with  such  restrictions  can  not  be  compared  either  to  the  Court  of  Claims 
of  the  United  States,  or  to  any  other  judicial  tribunal  to  which  it  has 
been  held  that  claims  of  foreigners  as  well  as  domestic  citizens  should 
first  be  submitted. 

The  views  above  expressed  are  clearly  suported  b}-  the  authorities. 
See  Fhillimore's  International  Law,  Vol.  II,  pages  3  et  seq.,  and  espe- 
cially  the  following  language  on  page  12: 

VII.  It  may  indeed  happen,  as  the  same  author  most  justly  observes,  that  the 
debtor  State  may  adopt  measures  of  domestic  finance,  so  fraudulent  and  iniquitous, 
!^o  evidently  repugnant  to  the  first  principles  of  justice,  with  so  manifest  an  inten- 
tion of  defeating  the  claims  of  its  creditors  as  to  authorize  the  Government  of  the 
creditor  in  having  recourse  to  acts  of  retaliation,  reprisals,  or  open  war — such  meas- 
ures, for  instance,  as  the  permnnent  deTpreciation  of  coin  or  paper  money,  or  the  abso- 
lute repudiation  of  debts  contracted  on  the  public  faith  of  the  country. 

The  instances  above  quoted  are  matters  of  finance.  The  same  prin- 
ciple applies  absolutely  to  an  attempt  to  accomplish  the  same  thing  by 
a  provision  such  as  was  made  by  Venezuela  in  this  case  making  recourse 
to  its  tribunals  subject  to  risk  both  of  tinancial  loss  and  personal 
imprisonment. 

VIII. 

The  position  of  the  Venezuelan  Goveimment  that  this  claim  should 
have  been  suhnitted  to  its  local  irihunals^  even  if  well  fomided^  has  heen 
expressly  waived  hy  the  siynimg  of  the  jn'otocol  unde'r  which  this  Corn- 
mission  is  appointed. 

Whether  the  position  of  Venezuela  as  outlined  in  the  correspond- 
cjice  of  its  diplomatic  r(>pi-(\sentati\'('s  with  those  of  the  United  States 
is  or  is  not  well  founded,  it  has  never  been  recognized  by  the  United 
States,  but  has  long  been  a  subject  of  controversy  between  the  two 
countries  and  has  been  one  of  the  essential  causes  for  nonsettlement 
of  many  of  the  controversies  which  are  to  be  submitted  to  tiiis  Com- 
mission. It  was  largel)%  if  notcntircl}^  because  of  disagreement  with 
respect  to  this  position  of  Venezuela  that  the  two  countries  were 
unable  to  amicabl}^  agree  upon  the' settlement  of  this  and  other  claims. 

S.  Doc.  317,  58-2 6 


82  KEPOKT    OF    UOliEUT    ('.    MORKIS. 

Aiul  it  was  lu'caiiso  of  thi.s  disagreenu'iit  on  this  question  to  a  large 
extent  tliat  there  arose  the  necessity  of  this  Commission. 

The  language  of  the  protocol  itself  can  bear  no  otiiei  interpretation, 
Tnder  its  provisions — 

All  rlaims  owned  by  citizens  of  the  United  States  of  America  tiiiainst  the  Republic 
of  Venezuela  and  which  have  not  been  settled  *  *  *  and  which  shall  have  been 
presented  to  the  Couunission  hereinafter  named  *  *  *  shall  be  examined  and 
decided  lay  a  ^lixed  Commission.  *  *  *  The  Commissioners  or,  in  case  of  their 
disagreenient,  the  umjnre  shall  decide  all  claims  upon  a  basis  of  absolute  equity 
without  regard  to  objections  of  a  technical  nature  or  of  the  i)rovisions  of  local 
legislation. 

It  would  have  been  ditheult  to  have  chosen  language  more  directlv 
applying  to  this  position  which  has  been  taken  by  the  Republic  of 
Venezuela  in  the  past.  The  express  exclusion  from  the  consideration 
of  the  Commissioners  of  any  local  legislation  excludes  the  decree  of 
1873  as  well  as  any  other  local  enactments,  for  by  the  word  local  we 
are  to  understand  Venezuelan  law  or  United  States  law,  as  the  case 
ma}'  be,  as  being  local  to  each  of  those  countries  in  distinction  from 
those  principles  of  natural  law,  which  are  alone  applicable  as  between 
two  or  more  countries. 

It  has  moreover  been  expressly  imd  repeatedly  held  that  the  reach- 
ing of  an  agreement  for  arbitration  or  the  appointment  of  a  commis- 
sion under  circumstances  such  as  this,  is  an  express  waiver  of  any 
provisions  of  law  whereby  the  claims  should  first  have  been  submitted 
to  local  tribunals. 

In  the  controversies  which  arose  between  the  United  States  and' 
Great  Britain  under  the  treaty  of  November  19,  1791,  common!;;^ 
called  the  Ja}^  treaty,  it  was  and  had  been  contended  by  Great  Britain 
that  the  claim  of  citizens  of  the  United  States  could  and  should  be  first 
submitted  to  the  determination"  of  the  local  tribimals  of  England, 
But  it  was  held  by  the  commissioners  that  the  making  of  the  treaty 
within  certain  lines  detined  l)v  it  as  to  the  class  of  cases  which  should 
be  taken  up  and  substituted  the  commissioners  as  a  court  absolutely  in 
place  of  any  such  local  tribunals  and  was  a  waiver  of  any -claim  that 
these  cases  should  tirst  have  been  submitted  to  such  local  tribunals  for 
adjudication.  (3d  Moore's  International  Arbitration,  pp.  3073,  3101 
to  3115,  3161  to  3206.)  See  also  the  opinion  of  William  R,  Day,  as  an 
arbitrator  appointed  under  the  protocol  ])etweenthe  United  Statesand 
the  Republic  of  Haiti,  in  which  Judge  Day  uses  the  following  lan- 
guage with  reference  to  a  similar  claim  that  the  ca.ses  should  have  been 
first  su})mitted  to  adjudication  of  local  tribunals: 

The  arbitrator  in  this  case,  however,  is  given  jurisdiction  of  the  differences  between 
the  two  Governments  l)y  the  terms  of  the  arbitral  agreement,  giving  him  jurisdiction 
and  authority  to  determine  certain  differences.     (I^or.  Eels.  1901,  p.  275.) 

The  protocol  in  this  case  having  given  this  Commission  power  to 
hear  and  determine  all  claims  owned  by  citizens  of  the  United  States 
against  the  Repul)lic  of  Venezuela,  its  power  is  unlimited  to  hear  and 
determine  all  such  claims  whether  the}^  might  or  might  not  have  beeil 
otherwise  a  proper  subject  for  adjudication  by  some  local  tribunal  of 
the  Republic  of  Venezuela, 

The  contention  of  the  Republic  of  Venezuela  in  this  respect  has 
therefore  been  abandoned  and  the  submission  of  all  controversies  to 
this  Commission  conceded  by  its  executing  the  protocol  under  which 
this  Commission  is  appointed. 


REPORT  OF  ROBERT  C.  MORRIS.  83 

The  arbitrator  in  this  case,  however,  is  given  jurisdiction  of  the  differences 
between  the  two  governments  by  the  terms  of  the  arbitral  agreement,  giving  him 
jurisdiction  and  authority  to  determine  certain  differences.     (For.  Rels.  1901,  p.  275.) 

The  protocol  in  this  case  having  given  this  Commission  power  to 
hear  and  determine  all  claims  owned  ])y  citizens  of  the  United  States 
against  the  Republic  of  Venezuela,  its  power  is  unlimited  to  hear  and 
determine  all  such  claims,  whether  the}'  might  or  might  not  have  been 
otherwise  a  proper  subject  for  adjudication  by  some  local  tribunal  of 
the  Republic  of  Venezuela. 

The  contention  of  the  Republic  of  Venezuela  in  this  respect  has 
therefore  been  abandoned  and  the  submission  of  all  controversies  to 
this  Commission  conceded  b}^  its  executing  the  protocol  under  which 
this  Commission  is  appointed. 

IX. 

An  award  should  he  made  in  this  case  for  the  full  amount  claimed^ 
to  wit,  $'29,925.11,  and  interest,  $8,789.19. 

The  facts  in  this  case  being,  as  we  have  seen,  clearly  established,  and 
being,  in  fact,  practically  undisputed,  and  the  only  cause  assigned  by 
the  Republic  of  Venezuela  for  its  unwillingness  hitherto  to  recognize 
and  pay  the  same,  to  wit,  that  the  claim  should  first  be  adjudicated  by 
its  local  court,  having  been  waived  and  abandoned  b}^  its  consent  to 
^e  establishment  of  this  Commission,  it  is  clear  that  the  Republic  of 
Venezuela  can  no  longer  advance  any  pretense  why  Mr.  Emerich 
Heny  should  not  recover  the  amount  which  he  now  claims. 

An  award  of  that  amount  should  be  made. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Claim  No.  6,  E.  Ileny. 

ANSWER. 

To  the  honorahle  viemhers  of  the  Venezuelan- American  Mixed  Commis- 
sion: 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has  inves- 
tigated the  papers  in  the  claim  presented  by  the  American  citizen, 
Eineiich  Heny,  and  as  a  resalt  of  his  study  respectfully  reports  to 
this  tribunal: 

The  claim  in  question  arises  out  of  two  different  matters.  The  first 
consists  in  money  and  goods  supplied  during  the  year  1892  to  one  of 
tlie  division  chiefs  of  the  revolution  called  "Legalista,"  which  aftei- 
wards  became  the  constituted  government,  and  in  damages  caused  by 
tlje  forces  belonging  to  the  said  revolution,  the  total  value  of  which 
was  acknowledged  to  the  claimant  })y  the  said  chief  of  division.  The 
second  consists  only  in  damages  to  a  ])lantation  of  which  the  claimant 
is  said  to  l^e  the  owner  and  calculated  by  him  in  th(i  sum  of  eight 
thousand  bolivars  (Bs.  S,0()0). 

Befoi(^  proceeding  to  consider  the  basis  of  the  claim,  the  undersigned 
makes  the  following  preliminary  observation:  The  claim,  as  it  has 


84  REPOKT  OF    ROBERT  C.  MORRIS. 

boon  presented,  lails  ouisidc  of  the  jurisdiction  of  the  Commission, 
aecordino"  to  the  terms  of  (he  protocol  signed  in  Wasldnoton.  In  fact, 
accordino-  to  tlu>  admission  of  the  claimant  himself,  he  is  only  a  copart- 
ner with  the  heirs  of  Benitz,  whose  interests  he  was  maiian'ing  at  the 
date  of  the  acts  upon  which  the  claim  is  founded,  and  the  share  of  the 
claim  which  mig-ht  belong-  to  him  has  not  been  ascertained  nor  prop- 
erly proved,  since  with  reference  to  this  point  there  exists  no  other 
jiroof  than  liis  bare  aliirmation,  too  interested  to  be  of  any  weight  in 
justice;  more  so  since  it  is  contradicted  by  the  facts  themselves. 

The  claim  was  presented  to  the  ministry  of  hacienda  and  public 
credit  in  March,  1893,  in  the  name  of  the  Benitz  heirs,  Venezuelans 
b\'  origin,  and  was  the  object  of  diplomatic;  correspondence  between 
the  Venezuelan  foreign  office  and  the  legation  of  the  United  States — 
certainly  for  that  portion  which  might  ])elong  to  Mr,  Heny. 

In  said  correspondence  the  foreign  office  limited  itself  to  sustaining 
the  principle  of  territorial  jurisdiction,  to  take  cognizance  of  and  decide 
the  claim  without  entering  into  a  discussion  of  the  facts  upon  which  it 
is  founded,  since  this  sort  of  controversy  is  not  within  the  scope  of  its 
functions.  It  can  not  be  sustained,  therefore,  as  the  honorable  agent 
of  the  United  States  claims,  that  this  enforced  omission  involves  a 
tacit  admission  of  the  correctness  of  the  amount  claimed  and  of  the 
facts  alleged.  On  the  other  hand,  the  Department  of  State  of  the 
United  States  has  given  concerning  this  concrete  case  an  opinion  based 
upon  the  general  rules  of  international  law,  the  undeniable  justice  and 
authority  of  which,  united  with  the  consideration  of  the  source  from 
which  it  comes,  must  strongly  influence  the  mind  of  the  tribunal  in 
arriving  at  its  judgment.  I  refer  to  the  letter  sent  under  date  of  April 
29,  1901,  by  the  Hon.  David  J.  Hill  to  Mr.  Carl  Hansman,  the  attor- 
ne}'  of  the  claimant.  In  said  document,  the  original  of  which  is  found 
among  the  papers,  the  high  American  official  says: 

Inasmuch  as  the  documentary  evidence  submitted  by  the  claimant  in  support  of 
his  first  claim  described  the  claim,  which  was  presented  first  to  the  ministry  of  the 
treasury  and  public  credit  as  being  made  by  the  "heirs  of  Senor  Carlos  Benitz,"  the 
claimant  should  produce,  by  the  production  of  the  contract  with  the  heirs  under 
which  he  managed  the  plantation,  or  other  evidence,  that  th(;  property  taken  and 
destroyed  belonged  to  him.  An  assignment  by  tlie  heirs  to  him,  at  a  date  subse- 
quent to  the  time  when  the  claim  arose,  of  their  interest  in  the  property  taken, 
affords  no  basis  upon  which  to  request  the  intervention  of  the  United  States  in 
behalf  of  the  claim. 

In  the  second  claim,  it  appears  that  a  part  of  the  sugar  cane,  for  the  destruction  of 
which  the  claim  is  made,  was  destroyed  by  the  passage  and  repassage  of  the  troops 
during  the  combat  between  the  Government  troops  and  the  revolutionary  forces. 
This  property  was  located  in  the  track  of  war,  and  its  destruction  in  the  manner  indi- 
cated appears  to  have  been  an  incident  of  the  military  operations.  Under  the  gene- 
ral ])rinciples  of  international  law,  the  Venezuelan  Government  would  not  be  liable 
for  the  property  so  destroyed. 

The  claimant  has  attempted  to  supply  the  proof  demanded  by  the 
document  which  has  just  been  cited,  and,  in  fact,  has  produced  a  grant 
in  his  favor  of  all  the  rights  and  actions  which  might  lielong  to  the 
Benitz  heirs,  executed  by  them.  Said  document  appears  to  have  a 
date  prior  to  the  facts  upon  which  the  claim  is  founded,  but  evidently 
it  was  executed  at  a  later  date,  wnth  the  preconceived  intention  of  sup- 
porting the  claim,  as  the  circumstance  of  its  not  having  been  regis- 
tered at  the  proper  time,  in  conformity  with  the  Venezuelan  law  and 
with  the  principle  of  the  common  law,  "  locus  regit  actum,"  would  lead 
us  to  believe.  It  is  also  inconceivable  how  this  formalit}"  could  have 
been  omitted,  since  there  was  question  of  a  grant  that  affected  third 


REPORT  OF  ROBERT  C.  MORRIS.  85 

parties,  and  consisted  in  the  transfer  of  rights  to  real  property  for 
which  record  in  the  registry  is  an  indespensable  requisite  in  Venezuela. 
(Civil  Code,  Art.  1888.)  At  all  events  the  document  in  question  is 
wanting  in  value  and  has  no  other  date  with  reference  to  third  parties 
than  its' presentation  to  the  legation  of  the  United  States,  a  date  sub- 
sequent to  the  time  when  the  acts  out  of  which  the  claim  arose  are  said 
to  have  been  committed.     It  can  therefore  have  no  legal  effect. 

With  reference  to  the  second  claim,  the  claimant,  with  the  object  of 
proving  that  the  damages  caused  to  the  estate  "La  Fundacion"  were 
not  the'necessary  incidents  of  the  operations  of  war,  has  presented  tes- 
timony in  the  form  of  depositions  which  has  no  legal  value,  not  only 
because  the  information  was  obtained  eight  years  after  the  acts  to 
which  it  related  which  are  sought  to  be  proved  by  it  and  before  an 
authority  incompetent  to  receive  it,  but  also  because  the  witnesses 
have  given  their  testimony  without  the  sanction  of  an  oath  and  in  open 
contradiction  to  the  facts  set  up  by  the  claimant  in  the  memorial 
addressed  to  the  Government  of  the  United  States. 

The  preceding  considerations  clearly  show  that  the  present  claim 
does  not  belong  entirely  to  an  American  citizen  and  can  not,  therefore, 
be  submitted  to  this  Commission,  and  that  the  facts  upon  which  it  is 
supposed  to  be  based,  falling  short  of  the  criterion  which  international 
law  establishes  in  similar  cases,  can  not  impose  responsibility  upon  the 
Government  of  Venezuela. 

Caracas,  6th  of  July,  1903. 

F.  Arroyo  Pare.to. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Emerich  Heny,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  6. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  answer  of  Venezuela  in  the  above-entitled  claim  great  stress 
is  laid  by  the  honorable  agent  of  Venezuela  upon  the  fact  that  the 
agreement  entered  into  between  the  claimant  and  the  heirs  of  Carlos 
Benitz  was  not  registered,  and  it  is  contended,  in  consequence  that  the 
document  in  question  is  wanting  in  value  and  can  have  no  legal  effect. 
This  contention  is  ))ased  upon  the  ground  that  article  1888  of  the  Civil 
Code  of  Venezuela  requires  that  all  instruments  relating  to  real  estate 
nuist  be  recorded.  It  is  also  asserted  that  third  parties  were  affected 
by  this  document,  but  who  they  were  is  not  set  forth. 

I. 

In  this  case  there  are  but  two  parties  concerned,  namely,  the  heirs 
of  Carlos  Benitz  on  the  one  part  and  the  claimant  on  the  other  part, 
and  if  the  claimant  was  content  not  to  i-cgister  the  document  and  trusted 
the  grantors,  relying  ui)on  their  honesty  and  his  close  family  ties  to 
them,  it  was  his  affair  and  the  transaction  was  of  no  moment  to  anyone 
else.     The  requirement  of  registration  is  merely  for  the  purpose  of 


86  REPORT  OF  ROBKKT  C.    MORRIS. 

givino-  notice  to  third  purtios  who  iiniy  ho  interested  or  hocome  inter- 
ested. Xo  (luestioii  as  to  any  possihle  ri^ht  of  a  third  part}'  or  of 
Venezuehi  in  the  real  property  ati'ected  hy  the  document  arises  in  this 
claim,  and  consequently  it  is  a  matter  of  indilierence  whether  the 
instrument  was  recorded  or  not.  If  Venezuela  had  any  rights  in  this 
property,  or  if  in  any  wise  a  question  of  title  was  involved,  it  might  be 
that  the  contention  would  have  some  sort  of  a  basis,  but  as  the  facts 
stand  it  is  utterly  lacking-  in  force.  The  claim  arises  out  of  acts  com- 
mitted by  the  Venezuelan  (xovernment  ])y  which  the  claimant  person- 
ally suli'ered  damage  in  his  right  to  the  use  of  the  estate,  to  his 
profits  and  to  his  individual  capital. 

11. 

The  honorable  agent  of  Venezuela  states  in  his  answer  that- 
Said  document  appears  to  have  a  date  prior  to  the  facts  upon  which  the  claim  is 
founded;  but  evidently  it  was  executed  at  a  later  date  with  the  preconceived  inten- 
tion of  supporting  the  claim.     *     *     * 

We  can  not  allow  this  statement  to  pass  without  comment.  It  is  a 
serious  charge  to  make  in  the  absence  of  supporting  proof.  No  proof 
whatever  is  presented  to  sustain  the  statement,  which  is  merely  a 
vague  supposition.  It  is  not  to  be  supposed  that  proofs  presented  to 
this  high  Commission  are  manufactured  evidence.  Suffice  it  then  to 
say  that  the  document  in  question  has  been  presented  by  the  Govern- 
ment of  the  United  States  on  behalf  of  the  claimant  as  a  part  of  the 
evidence  submitted  by  him  in  support  of  this  claim,  and  as  such  it  is 
entitled  to  great  weight  and  to  the  highest  respect. 

The  original  of  this  instrument  between  the  heirs  of  Carlos  Benitz 
and  the  claimant  is  herewith  submitted  to  the  Commission  for  its 
inspection. 

III. 

Referring  to  the  quotation  in  the  answer  of  Venezuela  from  the 
letter  of  Hon.  David  J.  Hill  to  Carl  A.  Hansman,  esq.,  April  29, 
1901,  it  appears  that  Mr.  Hansman  replied  to  this  letter  on  June  12, 
1901,  and  in  response  thereto,  by  letter  of  June  17,  1901,  Mr.  Hill 
stated  that  it  would  be  desirable  to  show  by  affidavits  of  the  claimant 
and  others  cognizant  of  the  facts  that  the  destruction  of  the  property 
referred  to  in  Mr.  Heny's  second  claim  was  not  incident  to  the  mili- 
tary operations,  but  that  the  property  was  confiscated  bv  the  Govern- 
ment forces  for  the  use  of  the  army.  Such  proofs  as  were  desired  were 
supi^lied  by  the  claimant  to  the  Department  of  State  at  Washington, 
and  the  United  States  has,  therefore,  presented  this  claim,  considering 
the  evidence  to  be  full  and  sufficient,  and  believing  the  claim  to  be  a 
just  one. 

IV. 

The  honorable  agent  of  Venezuela  states  in  reference  to  the  second 
claim  that  the  claimant — 

has  presented  testimony  in  the  form  of  depositions  which  has  no  legal  value,  not 
only  because  the  information  was  ol)tained  eight  years  after  the  acts  to  which  it 
related,  which  are  sought  to  be  i)roved  ])y  it,  but  also  because  the  witnesses  have 
given  their  testimony  without  the  sanction  of  an  oath  and  in  open  contradiction  to 
the  facts  set  up  by  the  claimant  in  his  memorial. 


REPORT  OF  ROBERT  C.  MORRIS.  87 

We  respectfully  call  the  attention  of  the  Commission  to  the  joint 
declaration  of  Nicanor  Acosta,  Pedro  Regaledo  Montes  de  Oca,  Julio 
Reveran,  and  R.  8.  Schaici,  at  Las  Tijerias,  March  24,  1900,  certified 
l\v  Rufo  (xalindo,  the  civil  and  military  authority  of  that  town,  show- 
ing that  the  contents  of  the  declaration  on  the  back  of  the  instrument 
are  true  in  all  their  parts,  and  that  the  signers  are  residents  of  Las 
Tijerias.  The  certificate  of  Galindo  was  in  turn  certified  to  by  Jose 
Jesiis  Reyes  Gordon,  civil  and  military  chief  of  the  community  of  El 
Consejo,*and  this  certificate  was  certified  to  by  Manuel  Rasquin,  civil 
chief  of  the  district  of  Ricuarte,  whose  certificate  was  then  certified  to 
b}'-  Jose  del  Cn.  Villesana,  principal  registrar  of  the  State  of  Aragua 
whose  certificate  was  then  certified  to  by  Jose  Maria  Garcia  Gomez, 
provincial  president  of  the  State  of  Aragua.  This  declaration  was 
made  on  March  24, 1900,  vydkin  four  months  from  the  time  of  the  acts 
complained  of.  Moreover,  Nicanor  Acosta  and  Pedro  Regaledo 
Montes  de  Oca  made  a  sworn  statement  of  the  facts  in  the  case,  which 
was  certified  to  in  March,  1901,  by  the  proper  authorities.  The  evi- 
dence could  not  be  stronger  and  is  in  full  accord  with  the  claim. 


From  the  proofs  submitted  it  is  clear  that  the  claim  belongs  entirely 
to  Mr.  Heny,  who  is  a  citizen  of  the  United  States,  and  that,  under 
Article  I  of  the  protocol,  he  is  entitled  to  have  this  claim  decided  by 
this  Commission.  An  award  should  be  made  for  the  full  amount 
claimed. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Emerich  Hent  I 

V.  >■  Claim  No.  6. 

Venezuela.     ) 

rejoinder  of  veneztjeiia. 

Honorahle  members  of  the  American-  Venezuelan  Mixed  Claims  Com- 
mission : 
The  undersigned,  agent  of   the  United  States  of   Venezuela,  h.. : 
perused  the  replication  of  the  honorable  agent  of  the  ITnited  States  in 
this  matter,  and  respectfully  sets  forth: 


The  argument,  from  a  standpoint  of  law.  made  by  the  undersigned 
for  the  rejection  of  the  weight  as  evidence  which  the  assignment  of 
the  Benitz  heirs  to  the  claimant  might  have,  consists  in  the  fact  that 
such  document  has  no  certain  date.  The  undersigned,  conuuenting 
upon  this  point,  said  that  it  was  not  explained  how  a  transfer  which 
must  necessarily  have  interested  third  parties — since  it  treated  of  the 
transfer  not  only  of  rights  but  also  of  obligations — had  not  been  exe- 
cuted before  the  public  registrar.  The  third  parties  in  this  case  are 
the  creditors  of  the  Benitz  estate. 


88  REFOKT  OF  ROBERT  0.  MORRIS. 

II. 

The  opinion  which  the  undersigned  oave  in  answerin*^  the  chiim, 
expres!sino-  the  belief  that  the  assionnient  was  of  a  hiter  date  than  the 
facts  out  of  which  the  demand  arises,  and  was  executed  for  the  sole 
purpose  of  sustaining  it,  can  not  be  called  a  g'uess;  such  opinion  was 
the  natural  and  logical  consequence  of  the  fault  under  which  the  instru- 
ment labors.  Such  opinion  has  been  streng'thened  by  the  evidence 
furnished  l)v  public  documents,  which  the  undersigned  presents  for 
the  consideration  of  the  tribunal,  marked  with  the  letters  ""A"'  and 
"  B.''  Said  documents  contain,  the  first,  the  deed  of  sale  by  which  the 
predecessors  in  interest  of  the  Benitz  heirs  acquired  the  hacienda 
called  ''La  Fmidacion,"  bears  date  March  11,  1878;  and  the  second, 
the  deed  of  sale  which  Emerich  Heny,  as  attorney  of  Juan  Remsted, 
made  for  his  principal  of  the  said  hacienda  to  the  Benitz  heirs,  bears 
date  November  28,  1898,  which  is  the  date  of  its  authentication  before 
the  judge  of  first  instance  of  the  Federal  District.  It  is  evident, 
therefore,  from  these  documents  (1)  that  the  hacienda  "  La  Fundacion  " 
has  never  been  the  property  of  the  claimant;  (2)  that  with  regard  to 
the  date  of  the  transactions  which  give  rise  to  the  second  claim,  the 
sole  proprietor  of  said  hacienda  was  Mr.  Juan  Remsted,  who  has  not 
been  proved  to  be  an  American  citizen. 

Therefore  the  tribunal  must  decide  between  the  weight  as  evidence 
of  the  documents  furnished  and  that  which  the  personal  and  interested 
affirmation  of  the  claimant  may  have. 

III. 

The  undersigned  contested  the  legal  value  of  the  deposition  taken 
to  support  tlie  second  claim  on  account  of  its  having  been  made 
before  an  incompetent  authority,  in  accordance  with  what  is  provided 
in  section  2,  Title  XXII,  part  2,  of  the  Code  of  Civil  Procedure — proofs 
of  fact  only  must  be  made  befoi'e  a  judicial  authority;  the  civil  chiefs 
are  not  functionaries  of  the  judicial  order,  and,  since  the  claimant 
ought  to  have  complied  with  the  principal  ' '  locus  reg-it  actum "  his 
proof  is  not  adequate. 

Caracas,  July  15,  1903. 

F.  Arroyo  Parejo. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting-  at 
Caracas,  Venezuela. 

The  United   States   of  America  on  behalf] 

of  Emerich  Heny,  claimant,  |  -j^     n 

The  Republic  of  Venezuela. 

Bainbridge,  Commissioner. 

Emerich  Heny,  the  claimant  herein,  was  born  in  Germany  in  1846 
and  emigrated  to  the  United  States  in  1867,  where  he  was  naturalized 
as  a  citizen  thereof  in  the  superior  court  of  the  city  of  New  York  on 
October  1.5,  1872.  Two  years  later  he  removed  to  Venezuela,  where 
he  has  since  resided.  In  1883  he  was  married  to  Bertha  Benitz,  of 
Caracas,  one  of  the  children  and  heirs  of  Carlos  Benitz,  deceased. 


EEPOET  OF  ROBERT  0,  MORRIS.  89 

The  Benitz  heirs  were  the  owners  of  an  estate  situated  at  Las  Tejerias, 
near  Caracas,  said  estate  being-  known  as  "La  Fundaclon."^  Upon  his 
marriage  Henj"  undertook  the  management  and  cultivation  of  the 
estate,  and  he  also  rented  an  adjoining  plantation  known  as  "El  Pal- 
mar," which  he  cultivated  on  his  own  account. 

In  the  months  of  September  and  October,  1892,  a  revolution  called 
the  "  Legalista"  was  in  progress  in  Venezuela,  which  ultimately  proved 
successful,  resulting  in  the  overthrow  of  the  then  existing  government. 
During  this  revolution  the  contending  forces  passed  over  "La  Funda- 
cion"  and  destroyed  the  crops,  seized  the  horses,  cattle,  and  other 
property,  and  exacted  from  the  owners  of  the  estate  loans  of  money 
and  supplies  for  the  troops,  inflicting  a  loss,  as  claimed,  aggregating 
143,096  bolivares,  equivalent  to  $27,617.91  in  United  States  gold. 

On  March  7,  1893,  Gen.  Antonio  Fernandez,  who  was  "  chief  of 
the  Ai-my  of  the  Center  during  the  Legalista  revolution,"  signed  a 
document  setting  forth  "the  pro  rata  supplies  furnished  the  Army  of 
the  Revolution  by  the  plantation  called  '  La  Fundacion '  situated  at  Las 
Tejerias,  the  property  of  the  heirs  of  Senor  C.  Benitz,  whose  general 
agent  and  representative  is  Seiior  E.  Heny,"  enumerating  said  supplies 
and  giving  the  total  value  thereof  as  113,096  bolivares. 

On  March  15, 1893,  Mr.  Heny  addressed  to  the  minister  of  the  treas- 
ury and  public  credit  the  following  communication: 

E.  Heny,  a  merchant  and  resident  of  this  city,  as  representative  and  authorized 
agent  of  the  heirs  of  Senor  C.  Benitz,  respectfully  represents  to  you: 

The  said  heirs  are  creditors  of  the  Government  for  the  sum  of  143,098  bolivars  for 
supplies  furnished  to  the  revolution  in  the  district  of  Ricaurte,  State  of  Miranda,  and 
as  shown  l)y  the  annexed  proofs  on  stamped  paper,  certified  by  Gen.  Antonio 
Fernandez,  which  I  present  to  vou  by  virtue  of  the  Executive  resolution  of  Novem- 
ber 25th,  last. 

Caracas,  March  15,  1893. 

(Signed)  E.  Heny. 

An  ofl'er  was  made  ])y  the  Government  to  pay  10  per  cent  of  the 
amount  of  the  claim  in  the  form  of  a  special  revolutionary  note  issue, 
which,  it  is  alleged,  was  worth  only  15  per  cent  of  its  par  value;  so 
that  the  offer  was,  in  effect,  to  pay' 6  per  cent  of  the  amount  claimed. 
The  offer  was  rejected  and  the  claini  was  withdrawn  from  the  ministry 
of  the  treasury  and  public  credit. 

During  the  months  of  November  and  December,  1899,  another  revo- 
lution was  going  on  in  Venezuela,  in  which  the  military  forces,  both 
of  the  Government  and  the  revolutionists,  passed  over  "La  Funda- 
cion "  and  cut  down  and  seized  for  forage  a  large  quantity  of  grow- 
ing sugar  cane.  A  battle  occurred  in  the  vicinity  on  November  29, 
1899,  and  the  sugar  cane  was  in  part  destroyed  by  the  passage  and 
rcpassage  of  the  troops.  The  total  value  of  the  sugar  cane  taken  or 
destroyed  in  this  manner  and  at  this  time  was  the  sum  of  12,000  boli- 
vares. 

The  United  States  of  America,  on  l)ehalf  of  Emerich  Heny,  now  pre- 
sents to  this  Commission  a  claim,  inclusive  of  the  two  claims  designated 
above,  amounting  in  the  aggregate,  Avith  interest,  to  $38,711.30.  _ 

Article  1  of  the  protocol  constituting  the  Commission  confers  juris- 
diction over  "all  claims  owned  by  citizens  of  the  United  States  of 
America  against  the  Republic  of  Venezuela  which  have  not  been  set- 
tled by  diplomatic  agreement  or  by  arbitration  l)etween  the  two  Gov- 
ernments, and  which  shall  have  been  presented  to  the  Commission 
hereinafter  named  by  the  Department  of  State  of  the  United  States  or 
its  legation  at  Caracas." 


90  REPORT  OK  ROBERT  C.  MORRIS. 

It  is  ovidonl  t'l-Dui  tlic  record  tliiit  Ilciiy  never  became  the  real 
owner  of  **La  Fundacion."  Sul),se(|iient  to  his  niarriao-e  he  assumed 
the  management  of  the  estate  and  became  in  all  matters  pei'taining  to 
it  the  oeiuM'al  ayent  and  i-epi-esentati\e  of  tiie  Benitz  heirs.  It  seems 
at  that  time  the  plantation  was  run  down  and  out  of  repair.  Hcny 
says: 

I'poii  my  nuiM-iiii,'i'  I  entered  into  a  contract  with  the  said  heirs  by  whicli  I 
undertook  the  luaiiaLreinent  and  cuUivationof  the  said  plantation  on  my  own  account 
and  with  my  iiichvi(hial  cajiital.  From  that  time  until  1892,  when  the  events  here- 
inafter related  occurred,  I  invested  in  addition  to  my  labor  and  services  the  sum  of 
?1L',()06.80  of  my  own  money  in  improving  and  developing  said  plantation. 

An  instrument  is  put  in  evidence  bearing  date  May  1,  1892,  which 
reads  as  follows: 

[Translation.] 

We,  Emilia  B.  de  Benitz,  a  widow,  Matilda  Benitz,  Adolf  Benitz,  Emilia  Benitz, 
Gustave  Benitz,  unmarried,  residing  in  this  city,  of  more  than  twenty-one  years  of 
age,  and  sole  heirs,  conjointly  with  Bertha  Benitz  de  Heny,  wife  of  E.  Heny,  of  Mr. 
Carlos  Benitz,  declare  that,  owing  as  we  do  Mr.  E.  Heny 'the  sum  of  twelve  thou- 
sand six  hundred  six  pesos  sencillos  and  eighty  centimals,  besides  other  sums  that 
we  owe  to  sundry  other  creditors  of  our  estate  *"  La  Fundacion,"  to  the  amount  of 
twenty-six  thousand  eight  hundred  thirty-three  pesos  and  thirty-three  centimals, 
for  money  supplied  by  said  Heny  for  the  improvement,  maintenance,  and  cultiva- 
tion of  our  sugar-cane  estate  called  "La  Fundacion,"  situate  at  Las  Tejerias,  juris- 
diction of  the  municipality  of  Consejo,  district  of  Ricaurte  of  the  State  of  Miranda, 
the  boundaries  of  which  are  in  conformity  with  the  title  of  property  which,  as  heirs 
to  our  principal,  Mr.  Carlos  Benitz,  is  in  our  possession  and  is  registered  under  num- 
ber 38  and  41  of  the  first  and  second  protocols  of  the  first  quarter,  under  date  of 
March  11,  1878,  w;e  hereby  assign,  cede,  and  transfer  in  favor  of  the  said  Mr.  E. 
Heny  all  of_  the  rights  and  actions  that  correspond  to  us  or  may  to  us  correspond  in 
future  in  saicl  property  "La  Fundacion,"  as  a  guarantee  to  said  Heny  for  any  loss  he 
may  sustain  in  the  capital  he  has  invested  in  said  estate,  Heny  remaining  bound  to 
answer  for  the  other  debts  incurred  l)y  said  estate,  which  he  is  to  pay  off  when  we 
make  as  we  now  make  a  formal  cession  in  his  favor  of  our  credits  in  said  estate.  To 
the  accomplishment  of  what  is  herein  agreed  to  we  bind  our  present  and  future 
property,  in  accordance  with  the  law.  I,  E.  Heny,  of  over  twenty-one  years  of  age, 
wedded  to  Bertha  Benitz,  residing  in  this  city,  do  accept  the  above  transfer  and 
bind  myself  to  carry  out  my  share  of  this  agreement.  Caracas,  May  1st,  1892. 
(Signed)  Emilia  B.  de  Benitz,  Matilda  Benitz,  Adolfe  Benitz,  Emilia  Benitz,  Gus- 
tavo Benitz,  E.  Heny. 

This  contract  between  the  Benitz  heirs  and  Jleny  is  neither  a  mort- 
gage nor  a  sale  of  the  estate.  Somewhat  deficient  in  form,  the  con- 
tract is  in  substance  that  known  to  the  civil  law  as  an  antichresis, 
whereby  a  creditor  acquires  the  possession  and  right  of  reaping  the 
fruits  and  other  revenues  of  real  property  given  him  in  pledge  as  securit}^ 
for  a  debt.  The  creditor  does  not  become  the  proprietor  of  the  immov- 
ables pledged,  but  he  may  take  the  profits  of  the  estate,  crediting 
annually  the  same  to  the  interest  and  the  surplus  to  the  principal  of 
the  debt,  and  being  bound  to  keep  the  estate  in  repair  and  pay  the 
taxes.  It  is  analogous  to  the  vadium  vivum  of  the  earl}^  English  law 
and  to  the  Welsh  mortgage,  which  has  now  gone  entirely  out  of  use 
in  common-law  countries.  Under  the  civil  law  the  antichresis  gives 
the  creditor,  not  the  title  to,  but  a  possessory  interest  in,  the  real 
property  pledged.  (4  Kent's  Com.,  138n. ;  Livingston  -".  Story,  11 
Pet.,  351;  Walton's  Civil  Law  in  Spanish-American,  art.  1881.) 

A  pledge  or  pawn  (Pfandrecht)  in  the  modern  Roman  law,  according  to  Bar's  defi- 
nition, is  a  real  or  possessory  right  to  follow  a  thing  in  the  hands  of  third  parties, 
for  the  satisfaction  of  a  personal  claim. 


EEPORT  OF  ROBERT  0.  MORRIS.  91 

A  whole  estate  may  be  thus  pledged  and  in  such  cases  the  pledge  covers  not  only 
what  is  on  the  estate  at  the  time,  but  what  may  afterwards  be  added  to  it,  even 
though  the  parties  have  at  the  time  no  knowledge  of  such  addition.  (Wharton, 
Conflict  of  Laws,  sec.  314,  citing  Savigny,  VIII,  sec.  368.) 

By  the  common  Eoman  law  a  person  can  hypothecate  his  entire  estate  as  an  aggre- 
gate, i.  e.,  all  things  which  he  has  in  bonis  at  the  particular  time  and  those  he  will 
possess  in  future.     (Ibid.,  sec.  320.) 

We  have  here  the-  measure  and  extent  of  Heny's  individual  interest. 
Up  to  May  1,  1892,  he  had  advanced  to  the  Benitz  heirs  out  of  his  own 
capital  the  sum  of  12,606.80  pesos.  Clearly  the  purpose  and  intent  of 
this  contract  was  to  secure  Heny  for  the  advances  made  and  to  be  made 
by  him  on  account  of  the  estate.  To  provide  this  security,  the  heirs 
of  Carlos  Benitz  pledged  to  Heny  the  estate  of  "La  Fundacion"  and 
its  appurtenances.  Thereafter  Mr.  Heny,  though  not  the  holder  of 
the  legal  title  to  the  estate,  did  have  a  real  or  possessory  right  therein, 
which  entitled  him  to  compensation  against  third  parties  who,  by  their 
wrongful  acts,  might  impair  his  security,  to  the  extent  at  least  of  his 
actual  interests  in  the  property. 

■  Anyone  having  an  interest  in  land  is  liable  to  suffer  injury  with  respect  to  this 
right;'  and  accordingly,  if  his  right,  however  limited  it  may  be,  is  injured,  he  may 
recover  compensation  equal  to  his  individual  loss.  The  general  rule  may  be  said  to 
be  that  the  extent  of  the  injury  to  the  plaintiff's  proprietary  right,  whatever  it  may 
be,  furnishes  the  measure  of  damages.     (Sedgwick  on  Damages,  sec.  69. ) 

In  the  contract  with  the  heirs  Mr.  Heny  agreed  to  pay  the  other 
debts  of  the  estate,  but  there  is  in  the  record  no  allegation  or  proof 
that  he  did  so.  They  can  not  be  considered,  therefore,  as  included  in 
the  advances  made  by  Heny  to  the  estate. 

(xeneral  Fernandez  certifies  that  the  pro  rata  supplies  furnished  to 
[lis  army  by  the  plantation  called  ' '  La  Fundacion  "  amounted  in  value 
to  113,098  bolivars.  These  supplies  consisted  of  crops,  horses,  cattle, 
lumber,  merchadise,  tools,  and  money.  All  of  this  property  as  appur- 
tenances of  the  estate  was  in  Heny's  possession  under  the  contract  with 
the  Benitz  heirs,  constituting  part  of  his  security  for  the  12,606.80 
pesos  invested  by  him  in  the  property.  It  represented  "fruits  and 
other  revenues"  of  the  estate  which  he  had  the  right  to  apply  to  the 
satisfaction  of  his  claim.  The  i^ropeity  taken  or  destroyed  exceeded 
in  value  the  amount  of  his  lien.  If  the  Government  of  Venezuela  is 
liable  for  the  taking  and  destruction  of  this  property,  Mr.  Heny  is 
entitled  to  an  award  for  the  amount  equal  to  his  individual  loss.  To 
this  should  be  added  as  involved  in  the  claim,  compensation  for  the 
proportionate  loss  sustained  by  his  wife,  Bertha  Benitz  Heny,  one  of 
the  Benitz  heirs,  who  is  by  virtue  of  her  marriage  a  citizen  of  the 
United  States. 

The  "Legalista"  revolution  of  September,  1892,  ultimately  proved 
successful  in  establishing  itself  as  thcde  facto  government  of  Venezuela. 
The  sam(>  liability  attaches  for  encroachment  upon  the  rights  of  neutrals 
in  the  case  of  a. successful  revolutionary  government,  as  in  the  case  of 
any  other  de  facto  government. 

The  validity  of  its  acts,  both  against  the  parent  State  and  its  citizens  or  subjects, 
depends  entirely  upon  its  ultimate  siu^cess.  If  it  fail  to  establish  itself  permanently 
all  such  acts  perish  with  it.  If  it  HU(;ceed,  and  l)ecome  recognized,  its  acts,  //;oy».  ihe 
comiiieiicdiit'iit  of  its  ('j-ifileure,  are  upheld  as  those  of  an  independent  nation.  (Williams 
V.  Bruffy,  'JG  U.  S.,  176.) 


92  REPORT  OK  ROBERT  0.  MORRIS. 

riu'  liability  ol'  a  o()V(>rinnont  for  eneroachnuMit  upon  nouti'al  prop- 
(,'rty  has  boon  oloarly  .statod  in  Shrio'U\y  v.  Chile,  docidod  bytho  United 
Stato.s  and  Chilean  Connni-ssion  of  18{)2,  as  follows: 

Neutral  property  taken  for  the  use  or  service  of  armies  or  functionaries  thereunto 
authorized  gives  a  right  to  the  owner  to  demand  romponsation  from  the  government 
exerrising  such  authority. 

This  rule  has  ])oen  followed  in  the  ease  of  Ford  Dix,  decided  l)y  this 
Connnission. 

The  cortiiicate  of  General  Fernandez  is  sufhcient  evidence  that  the 
property  taken  from  "  La  Fundacion''  was  under  the  authorization  of 
the  military  authorities  for  the  use  and  service  of  the  revolutionar}^ 
army. 

The  learned  counsel  for  Venezuela  urges  that  the  contract  between 
Heny  and  the  Benitz  heirs  is  void  because  it  consisted  in  the  transfer 
of  rights  to  real  property  for  which  record  in  the  registry  is  an  indis- 
pensable requisite  in  Venezuela.  (Civil  Code,  art.  1888.)  But  this 
position  is  believed  to  be  untenable.  Certainly  the  contract  was  valid 
as  between  the  parties,  whether  recorded  or  not.  And  whatever  may  be 
the  requirement  and  effect  of  a  registration  law  as  effecting  the  rights 
of  innocent  third  parties,  it  can  have  no  possible  bearing  to  excuse 
the  acts  of  a  mere  trespasser  or  tort-feasor. 

The  foregoing  renders  unnecessary  any  discussion  of  the  second 
claim.  But  it  may  be  remarked  that  the  evidence  shows  that  at  the 
time  of  its  destruction  the  propert}^  \iiy  in  the  track  of  actual  war. 

An  award  should  be  made  in  this  case  for  the  sum  of  |10,085.40 
(being  the  equivalent  of  12,606.80  pesos)  and  the  further  sum  of 
$1,753.25  (the  proportionate  loss  sustained  by  Bertha  Benitz  Heny), 
in  all  the  sum  of  $11,838.69,  in  United  States  gold,  with  interest 
thereon  at  3  per  cent  per  annum  from  March  15,  1893,  the  date  of  the 
presentation  of  the  claim  to  the  Venezuelan  Government,  to  Decem- 
ber 31,  1908,  the  anticipated  date  of  the  final  award  by  this  Com- 
mission. 

In  so  far  as  any  claim  or  claims  of  the  heirs  of  Carlos  Benitz  other 
than  Bertha  Benitz  Heny  are  involved  herein,  they  should  be  dis- 
missed for  want  of  jurisdiction,  without  prejudice  to  their  prosecu- 
tion in  a  proper  forum. 

The  United    States  and  Venezuelan   Claims   Commission,   sitting   at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 

of  Emerich  Heny,  claimant,  |  .r     ^ 

The  Republic  of  Venezuela.  1 

doctor  Paul,  Commissioner. 

The  United  States  of  America,  on  behalf  of  Emerich  Heny,  pre- 
sents to  this  Commission  a  claim  for  the  sum  of  $38,714.30,  interest 
inclusive. 

E.  Heny,  claimant,  was  born  in  Germany  in  1846,  emigrated  to  the 
United  States  in  1867,  was  naturalized  an  American  citizen  in  1872, 
and  two  years  later  moved  to  Venezuela,  where  he  has  since  resided. 
In  1883  he  married  in  Caracas  Miss  Bertha  Benitz,  daughter  and  heir 
of  Carlos  Benitz,  then  deceased.     The  heirs  of  the  latter  acquired  by 


REPOET  OF  ROBERT  C.  MORRIS.  93 

inheritance  from  their  father  a  rural  property  situated  in  "Las  Teje- 
rias,"  and  culled  "La  Fundacion.''  After  his  marria.^e  Hen}-  became 
manager  of  this  estate. 

The  claim  is  based  on  the  following  grounds: 

First.  During  the  months  of  September  and  October,  1892,  the 
so-called  Legalista  revolution,  which  afterwards  became  the  Regular 
Government,  destroyed  the  plantations  of  the  estate  "  La  Fundacion," 
confiscated  horses,  cattle,  and  other  valuable  property,  and  obtained 
sums  of  money  as  loans,  the  total  of  these  items  amounting,  as  it  is 
affirmed,  to  the  sum  of  143,008  bolivars.  Gen.  Antonio  Fernandez, 
on  March  7,  1893,  signed  a  document,  in  his  character  of  "'chief  of 
the  Army  of  the  Center  during  the  Legalista  revolution,"  declaring 
that  "the  total  sum  of  the  advances  made  to  the  revolutionary  army 
b}^  the  estate  called  'La  Fundacion,'  property  of  Mr.  Benitz  heirs 
and  manage(,l  by  Mr.  E.  Heny,  amounted  to  the  sum  of  143,098  boli- 
vars."    This  document  appears  to  be  legall}-  executed  by  its  signer. 

Second.  During  the  months  of  November  and  December,  1899, 
forces  of  the  revolution  "Restauradora,"  then  alread}^  constituted  as 
govermiient,  passed  and  repassed  over  the  estate  "La  Fundacion," 
cutting  large  quantities  of  the  sugar  cane  under  cultivation  for  forage, 
a  battle  actually  taking  place  upon  the  property  causing  damages 
to  said  plantation.  The  amount  claimed  on  this  account  is  12,000 
bolivars. 

Third.  The  honorable  agent  of  the  United  States  presents  as  proof 
that  this  claim  belongs  to  the  American  citizen,  Mr.  E.  Heny,  a  pri- 
vate document  executed  by  the  widow  and  children  of  Carlos  Benitz, 
his  heirs,  dated  in  Caracas  on  May  1,  1892,  in  which  it  appears  that 
there  being  due  to  Mr.  E.  Heny  the  sum  of  12,606.80  pesos  venezolanos, 
and  to  other  creditors  of  the  same  estate,  "  La  Fundacion,"  the  sum 
of  $26,833,  for  advances  made  by  said  Heny  for  the  improvement, 
maintenance,  and  cultivation  of  the  said  plantation,  they  assigned  and 
transferred  to  E.  Heny  all  rights  and  interests  that  corresponded  or 
might  thereafter  correspond  to  them  in  the  said  estate,  "  La  Funda- 
cion," as  a  guaranty  against  any  loss  that  Heny  might  sustain  of  the 
capital  invested  by  liim  in  the  estate;  Heny  being  also  bound  to  respond 
for  all  other  claims  against  the  estate,  which  he  undertook  to  pa}-  in 
consideration  of  the  transfer  made  to  him  of  all  the  rights  and  inter- 
ests in  the  said  property. 

Fourth.  E.  Heny  addressed,  on  March  15,  1893,  the  minister  of 
finance  and  public  credit,  as  follows: ' 

E.  Heny,  merchant  and  resident  of  this  city,  on  hehalf  and  as  representative  of 
the  heirs  of  Mr.  C.  Benitz,  begs  to  state  respectfully  that  said  heirs  are  creditors 
of  the  Government  for  the  sum  of  143,098  bolivars  for  advances  made  to  the  revolu- 
tion in  the  district  of  Ricaurte,  State  of  Miran<la,  as  is  proven  by  the  annexed  voucher, 
consisting  of  one  folio,  signed  by  Gen.  Antonio  Fernandez,  which  I  j^resent  to  you  in 
accordance  with  the  executive  resolution  of  28th  of  November  last. 

When  this  claim  was  presented  to  the  ])oard  of  public  credit  it  was 
admitted  in  favor  of  Benitz  heirs  for  one-half  of  the  total  amount 
claimed,  and  the  (jovermnent  offered  in  payment  bonds  of  "  deuda  de 
la  rcvolucion,"  which  the  claimants  declined  to  accept  for  reason  of  its 
depreciated  price  in  the  market.  Subsequently,  E.  Heny  addressed 
the  Department  of  State  at  Washington,  on  May  9,  1901,  presenting 
in  his  own  name  and  for  his  account  two  claims  which  had  arisen  as 
the  results  of  the  acts  connnitted  by  the  revolutionary  forces  in  the 
estate  "La  Fundacion"  in  1892  and"l899,  and  otlier  damages  suffered. 


94  REPORT  OF  ROBERT  ('.  MORRIS. 

The  potitioiuM'  in  that  (locuinoiit  styles  himself  owner  of  the  planta- 
tit)n  "La  Finulaeion," 

The  hon()r:il)le  Acting-  Secretary  of  State,  David ,].  Hill,  in  his  noteof 
A])nl  2!i,  lltol.  addressed  to  Mr.  ileny's  attorney,  Carlos  A.  Ilansniann, 
in  ans>yer  to  the  claim  presented  by  said  attorney  ao-ainst  the  Gov 
(M'nment  of  Venezuela  for  damages  caused  by  the  destruction,  occu- 
pation, and  contiscation  of  lleny's  propert}'  by  militar}'  forces  of  the 
Venezuekn  Government  and  by  revolutionary  troops,  determined 
and  specified  that  Mr.  Ileny  should  produce  the  contract  made  with 
Benitz  heirs,  by  virtue  of  which  he  Avas  managing-  the  plantation,  or 
'duy  other  proof  that  the  property  taken  and  destroyed  belonged  to 
him.  To  comply  with  this  requirement  the  claimant  has  presented  to 
the  Connnission  the  private  agreement  executed  on  Ma}^  1,  1892,  by 
the  widow  and  children  of  Mr.  Benitz,  deceased. 

The  honorable  agent  for  the  Venezuelan  Government  qbjects  to  the 
elhcacj"  of  this  contract  or  private  document  as  to  establishing  the 
proof  of  ownership  in  favor  of  Heny  of  property  rights  in  the  estate 
''  La  Fundacion  "  as  to  third  parties,  inasmuch  as  said  document  lacks 
official  certiiication  as  to  the  exactness  of  the  date  and  has  not  been 
authenticated  and  recorded  in  the  public  register's  office  of  the  district 
where  the  estate  is  situated  in  conformity  with  the  law.  In  proof  of 
this  assertion  the  honorable  agent  has  produced  two  deeds,  marked 
"A"  and  '^B,"'  the  first  of  which,  dated  March  8,  1878,  refers  to  the 
purchase  of  the  estate  ""La  Fundacion"  by  Carlos  Benitz,  and  the 
second,  dated  November  28,  1898,  in  which  it  appears  that  Mr.  E. 
Heny,  acting  as  attorney  for  Juan  Remsted,  on  July  2,  1896,  by  deed 
dul}"  recorded  in  the  city  of  La  Victoria  in  the  public  register's  office, 
bought,  for  said  Remsted,  from  the  widow  and  children  of  Mr.  Benitz 
the  plantation  called  "  La  Fundacion"  for  the  sum  of  80,000  bolivars, 
with  an  agreement  of  resale  for  the  same  amount  to  Messrs.  Benitz 
within  a  stipulated  term.  It  also  appears  from  the  last-mentioned  deed 
that  the  Benitz  heirs,  after  having  availed  themselves  of  the  privilege  of 
repurchasing  the  estate  "La  Fundacion  "  by  paying  to  Remsted  the 
sum  of  80,000  bolivars,  and  thus  having  reacquired  the  ownership  of 
said  estate,  the  same  heirs  of  Benitz,  and  among  them  Bertha  Benitz, 
acting  under  the  authorization  of  her  husband,  E.  Heny,  made  a  new 
sale  to  Mrs.  Attagracia  H.  de  Ortega  Martinez  of  the  same  plantation, 
free  from  all  incumbrances,  for  the  sum  of  36,000  bolivars,  reserving  to 
them  the  privilege  of  repurchasing  within  the  term  of  one  year,  and 
Messrs.  Benitz  remaining  as  tenants  of  the  plantation.  This  deed, 
signed  by  E.  Heny  as  attorney  for  J.  Remsted,  is  authenticated  before 
the  mercantile  court  of  first  instance  of  the  Federal  District  on  the 
28th  of  Novem])er,  1898,  and  was  recorded  in  the  public  register's 
office  of  the  District  of  Ricaurte  on  December  2  of  the  same  year. 

It  appears  from  the  foregoing  that  the  question  of  the  rights  that 
Mr.  Heny  alleges  to  have  acquired  in  the  real  property  "La  Funda- 
cion," prior  to  the  dates  on  which  the  acts  committed  by  the  Govern- 
ment and  revolutionary  forces  took  place,  and  which  rights  he  claims 
as  arising  from  the  private  contract  betwecii  himself  and  Benitz  heirs, 
is  in  itself  a  question  which  treats  of  the  rights  acquired  in  a  real 
property  situated  within  the  territory  of  the  Republic.  All  questions 
relating  to  real  property  are  necessarily  governed  by  the  local  law  of 
the  place  where  the  property  is  situated;  lex  loci  reicitas  (rei  sita?). 


REPORT  OF  ROBERT  C.  MORRIS.  95 

As  everything  relating  to  the  tenure,  title,  and  transfer  of  real  property  (immobilia) 
is  regulated  by  local  law,  so  also  the  proceedings  in  courts  of  justice  relating  to  that 
species  of  property,  such  as  the  rules  of  evidence  and  of  preemption,  the  forms  of 
action  and  pleadings,  must  necessarily  be  governed  by  the  same  law. 

Real  property  is  considered  as  not  depending  altogether  upon  the  will  of  private 
individuals,  but  as  having  certain  qualities  impressed  uprai  it  by  the  laws  of  that 
country  where  it  is  situated,  and  which  qualities  remain  indelible,  whatever  the  laws 
of  another  State,  or  the  private  dispositions  of  its  citizens  may  provide  to  the  con- 
trary. That  State,  where  this  real  property  is  situated,  can  not  suffer  its  own  laws 
in  this  respect  to  be  changed  by  these  dispositions  ^^•ithout  great  confusion  and  preju- 
dice to  its  own  interest.  Hence  it  follows  as  a  general  rule  that  the  law  of  the  place 
where  real  property  is  situated  governs  as  the  tenure,  title,  and  the  descent  of  such 
property.     (Wheaton's  Elements  of  I.  L.,  pp.  127  and  187.) 

The  contract  made  between  the  heirs  of  Benitz  and  Hen}',  in  Ma}^, 
1S9!>,  is  not  a  contract  of  sale,  by  which  the  dominion  of  the  real  estate 
is  transferred  in  conformity  with  the  laws  that  govern  such  contracts, 
because  in  order  to  be  so  considered  required  the  explicit  statement 
that  the  real  estate  was  given  in  sale  for  a  stated  price,  and,  further- 
more, the  local  law  required  that  in  order  to  be  valid  as  to  third  par- 
ties the  document  must  be  recorded  at  the  register's  office  of  the 
district  where  the  said  real  estate  is  situated.  Neither  is  it  a  niortgage 
contract,  because,  although  the  word  guarantee  is  employed,  it  lacked 
one  of  the  two  essential  legal  conditions  that  characterize  the  mortgage, 
and  that  is  the  publicity  which  is  obtained  according  to  the  law  by 
employing  the  essential  formalit}^  of  registering  in  the  proper  office  of 
the  place  where  the  real  estate  is  situated.  From  the  terms  of  the  said 
contract  the  only  inference  which  might  be  drawn  is  that  it  was  the 
intention  of  the  parties  to  celebrate  an  antichresis,  giving  to  the  cred- 
itor the  right  of  reaping  the  fruits  of  the  estate  delivered  to  him,  with 
the  obligation  of  annually  crediting  the  value  thereof  against  the  inter- 
est, if  any  was  due  to  him,  and  any  remaining  balance  against  the  prin- 
cipal standing  to  his  credit;  but  besides  the  terms,  which  characterize 
a  contract  of  antichresis,  being  imperfectly  defined  in  the  said  contract, 
because  there  is  no  stipulation  that  the  creditor  acquired  the  right  to 
reap  the  fruits  with  the  obligation  of  crediting  the  value  thereof 
against  the  interest  and  principal  due  him,  in  order  that  this  contract 
of  antichresis  might  be  valid  against  third  parties  it  was  necessary 
that  the  formality  of  registry  should  likewise  be  complied  with,  as 
being  essential  for  its  effectiveness. 

The  said  document,  such  as  it  is,  only  established  a  subsidiary  guar- 
antee between  the  debtor  and  the  creditor,  which  did  not  cancel  Heny's 
credit  against  the  Benitz  heirs,  neither  transferred  to  Heny  any  actual 
right  in  the  real  estate  belonging  to  said  Benitz  heirs,  because  that 
transfer  to  make  it  effective  against  third  parties  would  have  had  to 
be  made  public  and  made  in  accordance  with  the  law  governing  the 
teiHire,  the  title,  and  the  transfer  of  the  real  property  in  the  place  of 
its  situation.  The  law  in  such  cases  demands,  as  an  essential  requisite 
for  the  transfer  of  rights  in  real  estate  to  produce  effect  against  third 
parties,  the  recording  thereof  in  the  office  of  the  public  register  in 
the  respective  district. 

The  Benitz  heirs,  owners  of  the  estate  "La  Fundacion,"  in  1892 
became  direct  creditors  of  the  Government  of  Venezuela  by  reason 
of  the  acts  damaging  said  estate  and  committed  by  the  forces  of  the 
"Revolution  Legalista,"  and  tlui  said  heirs,  as  regards  their  relations 
to  the  Venezuelan  Government,  being  as  they  were  the  only  owners 
of  the  estate  called  "La  Fundacion"  as  per  public  title,  duly  recorded, 


\)G  REPORT    OF    li01i¥AiT    0.    MORRIS. 

and  it  was  in  vii'tuo  of  this  owncrsliip  onl^^  that  General  Fernandez 
executed  to  the  Benitz  heirs  an  ackuowledo-nient  of  their  credit 
against  the  (Tovernment  of  \'eneziuda.  and  it  was  for  the  same  reason 
that  E.  Ileny  presented  to  the  minister  of  linances  and  public  credit, 
as  attorney  of  the  Benitz  heirs  and  on  behalf  of  said  heirs,  owners  of 
the  estate  •'  La  Fundacion,"  against  the  said  Government,  the  claim  for 
the  amount  of  this  credit. 

This  opinion  is  confirmed  by  the  remarkable  circumstance  that  four 
years  after  the  celebration  of  the  private  agreement  between  Benitz 
heirs  and  ITeny  the  Benitz  heirs  appear  on  record  as  signing  a  deed 
of  sale  of  the  estate  ''La  Fundacion"  in  favor  of  Mr.  Juan  Remsted, 
and  the  same  j\Ir.  Ileny  accepted  the  said  sale  as  attorne}^  for  Remsted 
Avithout  making  any  reservation  as  to  the  rights  which  he  had  acquired 
in  the  income  and  value  of  the  estate,  as  suret}^  for  the  pa3anent  of 
his  personal  credit  against  the  Benitz  heirs.  This  acceptance  of  the 
transfer  of  the  real  estate  to  a  third  party  given  by  Heny  implies  one 
of  two  conclusions— either  JVIr.  Heny  had  been  paid  1>3^  the  Benitz 
heirs  on  or  before  that  date  the  amount  personall}^  due  to  him,  or  by 
such  act  he  released  his  rights  against  the  estate  "La  Fundacion" 
which  the  Benitz  heirs  had  accorded  him  as  a  guarantee  for  any  loss 
that  he  might  incur  because  of  his  prior  in^-estments  in  the  said  estate. 
In  either  case  all  legal  rights  or  privileges  established  by  the  private 
contract  of  1892,  in  reference  to  the  estate  "•  La  Fundacion,"  even  con- 
sidering said  contract  as  an  antichresis,  became  null  and  void  and 
without  effect  whatsoever. 

It  appearing  proven  by  the  public  deed  presented  by  the  honorable 
agent  of  Venezuela,  dated  November  28,  1898,  that  the  estate 
"  La  Fundacion  "  was  again  sold  to  Mrs.  A.  H.  de  Ortega  Martinez,  by 
the  same  heirs  of  Benitz,  as  owners,  this  evidence  destroys  Heny's 
pretension  to  the  payment  of  the  damages  caused  to  the  real  estate 
"La  Fundacion"  in  1899,  which  constituted  the  second  part  of  his 
claim,  because  on  that  date  the  said  estate  did  not  belong  to  him.  ^ 

The  circumstance  which  is  argued  that  the  estate  "  La  Fundacion" 
was  cultivated  and  developed  with  Mr.  Heny's  money  does  not  estab- 
lish any  juridical  bonds  between  him  and  the  Venezuelan  Government, 
as  relating  to  the  damages  caused  to  the  property  by  Government  or 
revolutionar}'^  troops,  as  such  damages  can  onl}^  be  claimed  of  the  Ven- 
ezuelan Government  by  such  parties  who  by  duly  registered  and 
authenticated  titles  appear  as  the  legitimate  owners  of  the  damaged 
property.  To  admit  as  competent  for  recognition  as  a  claimant 
before  this  Commission  anyone  who  may  advance  money  for  the 
cultivation  and  development  of  estates  or  property  belonging  to  Ven- 
ezuelan citizens  would  be  equivalent  to  bringing  before  this  Commis- 
f5;ion  all  foreigners  who  make  a  business  of  advancing  money  to  the 
owners  of  real  propertv,  either  by  private  contracts  or  by  virtue  of 
contracts  in  which  a  mortgage  on  the  property  so  benefited  is  given, 
a  common  practice  between  the  foreign  merchants  established  in  this 
country  and  Venezuelan  proprietors  and  agriculturists. 

In  consequence,  my  opinion  is  that  this  claim  should  be  disallowed. 


REPORT    OF    R013EKT    C.   MORRIS.  97 


The  United   States  of  America  ox   behalf 
of  Emerich  Heny,  claimant, 

V. 

The  Republic  of  Venezuela. 


l^No. 


OPINION  OF  THE  TJMPIRE,  DR.  BARGE. 

A  difference  of  opinion  arising-  between  ttie  Commissioners  for  the 
United  States  of  America  and  the  United  States  of  Venezuela,  this  case 
was  duly  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol,  doc- 
uments, evidence,  and  arguments,  and  likewise  all  other  communica- 
tions made  by  the  two  parties,  and  having  carefully  and  impartially 
examined  the  same,  has  arrived  at  the  decision  embodied  in  the  present 
award. 

As  to  the  first  claim  of  the  claimant: 

Whereas  it  is  clearl}^  proven  that  in  the  months  of  September  and 
October,  1892,  during  the  so-called  "Legalista"  revolution,  at  the 
hacienda  "  La  Fundacion  "  the  plantations  of  that  estate  were  partially 
destroyed,  horses,  cattle,  and  other  valuable  property  confiscated  and 
sums  of  money  obtained  as  loans  by  the  troops  of  the  revolutionary 
party  for  the  use  and  service  of  the  revolutionary  army  under  the 
authorization  of  the  military  chiefs; 

And  whereas  the  revolution  proved  ultimately  successful  in  estab- 
lishing itself  as  the  de  facto  government,  so  that  the  liability  of  the 
Venezuelan  Government  for  these  acts  can  not  be  denied; 

And  whereas  Emerich  Heny,  who  has  proved  himself  a  citizen  of 
the  United  States  of  America,'  claims  that  the  sum  owed  by  the  Vene- 
zuelan Government  as  restitution  for  the  above-mentioned  acts  is  due 
to  him,  and  as  proof  of  his  rights  in  the  above-mentioned  damages, 
confiscated  properties  and  loaned  money,  produces  an  instrument 
bearing  date  of  May  1,  1892,  and  containing  a  contract  between  him- 
self and  the  heirs  of  Carlos  Benitz,  who,  according  to  the  evidence 
produced  before  the  Commission,  w^ere  on  the  date  of  the  above-stated 
facts  the  owners  of  the  said  estate  "  La  Fundacion;" 

Whereas,  therefore,  it  has  to  be  considered  to  what  extent  this  con- 
tract gives  the  claimant  any  right  to  the  claim  in  question. 

Whereas  this  contract  reads  as  follows: 

[Translation.] 

We,  Emilia  B.  de  Benitz,  a  widow,  Matilda  Benitz,  Adolfe  Benitz,  Emilia  Benitz, 
Gustavo  Benitz,  unmarried,  residing  in  this  city,  of  more  than  twenty-one  years  of 
age,  and  sole  heirs,  conjointly  with  Bertha  Benitz  de  Heny,  wife  of  E.  Heny,  of  Mr. 
Carlos  Benitz— declare  that  owing  as  we  do  to  Mr.  E.  Heny,  the  sum  of  twelve 
thousand  six  hundred  and  six  pesos  sencillos  and  eighty  centimals,  besides  other 
sums  that  we  owe  to  sundry  other  creditors  of  our  estate  "  La  Fundacion,"  to  the 
amount  of  twenty-six  thousand  eight  hundred  and  thirty-three  pesos  and  thirty- 
three  centimels,  for  money  supplied  by  E.  Heny,  for  the  improvement,  maintenance, 
and  cultivation  of  our  sugar-cane  estate  called  "La  Fundacion,"  situated  at  Las 
Tejerias,  jurisdiction  of  the  municipality  of  Consejo,  district  of  Ricaurte,  of  the  State 
of  Miranda,  the  boundaries  of  which  are  in  conformity  with  the  title  of  property 
which,  as  heirs  of  our  i)rincipal,  Mr.  Carlos  Benitz,-is  in  our  possession  and  is  regis- 
tered under  iium])cr  :W  and  41,  of  the  first  and  sec^ond  protocols,  of  the  first  quarter, 
under  date  of  March  1  1,  ].S78,  we  hereby  assign,  cede,  and  transfer  in  favor  of  the 
said  Mr.  E.  Heny,  all  the  rights  mv\  actions  that  correspond  to  us  or  may  to  us  cor- 
respond in  future  in  said  projx-rty  "La  Fundacion,"  as  a  guarantee  to  said  Heny  for 
any  loss  he  may  sustain  in  the  capital  lit;  has  invested  in  said  estate,  Heny  remaining 
bound  to  answer  for  the  other  deljts  incurred  by  the  said  estate,  which  he  is  to  jiay 
off  when  we  make,  as  we  do  now  make,  formal  cession  in  his  favor  of  our  credits  m 

S.  Doc.  317,  58-2 7 


98  REPORT  OF  ROBERT  C.  MORRIS. 

said  estate.     To  the  accomplishmont  of  what  is  herein  agreed  to,  we  bind  our  present 
and  future  i>roperty,  in  ari'ordance  witli  the  law.     E.  Heny,  over  twenty-one  years 
of  aire,  weddi'd  to  Hertlia  IVnit/.,  residing  in  this  city,  do  accept  the  above  transfer 
and  bind  nivseU"  to  carry  out  my  share  of  the  agreement. 
Caracas,  May  1,  1892.' 

(Signed)  Emilia  B.  de  Benitz. 

(Signed)  Matilde  Benitz. 

(And  others  in  interest.) 

And  whereas  it  is  clear  that  in  this  contract,  stating-  that  they  owe 
the  chiiniant  Heny  the  sum  of  12,00t)  pesos  sencillos  and  80  ccntimals, 
as  invested  b}^  him  in  the  estate  "La  Fimdacion,"  and  that  they  owe 
besides  26,833  pe.sos  and  33  centimals  to  sundry  others  whom  they 
call  "creditors  of  our  estate  'La  Fundacion,' "  thereb^Mndicatino-  that 
this  sum  as  well  Avas  invested  in  said  estate,  the  heirs  of  Carlos  Benitz 
wanted  to  give  a  guarantee  to  Heny  for  an}^  capital  invested  by  him 
in  that  estate,  and  at  the  same  time  wished  to  be  freed  from  the  other 
debts  incurred  by  said  estate,  and  therefore  transferred  to  him,  Heny, 
their  credits  in  that  estate,  while  he  agreed  to  answer  for  all  the  debts; 

Whereas  certainly  this  contract  is  neither  a  mortgage  nor  a  sale  of 
the  estate,  and,  lacking  the  characteristic  stipulations  of  an  antichresis, 
can  not  properl}^  be  counted  to  that  species  of  contracts,  to  which,  in 
substance,  it  seems  to  bear  most  resemblance; 

Whereas,  however,  whatever  may  be  the  technical  deficiencies  of 
the  instrument,  while  interpreting  contracts  upon  a  basis  of  absolute 
equity,  what  the  parties  clearly  intended  to  do  must  primarily  be 
considered ; 

And  whereas  it  was  clearly  the  intention  of  parties  that  no  one  but 
the  claimant  should  have  a  right  to  expropriate  an^^thing  belonging 
to  this  estate,  nor  to  profit  by  the  revenues — at  all  events  so  long  as 
his  interest  in  the  estate  should  last,  which  interest  the  heirs  wished 
to  guarantee;  and  whereas  this  interest  existed  as  well  in  the  sum 
invested  by  him  in  the  estate  as  in  the  debts  he  assumed  and  which  he 
might  pay  out  of  the  estate,  the  credits  and  debits  of  which  were 
equally  transferred  to  him  by  the  owners;  whereas,  therefore,  accord- 
ing to  this  contract  at  the  moment  the  facts  which  obliged  the  Vene- 
zuelan Government  to  restitution  took  place,  the  only  person  who 
directly  suffered  the  "  detrimentum "  that  had  to  be  repaired  was  the 
claimant  E.  Heny ; 

AVhereas  it  being  true,  that  according  to  the  principles  of  law 
generally  adopted  b}^  all  nations  and  also  by  the  civil  law  of  Venezuela, 
contracts  of  this  kind  only  obtain  their  value  against  third  parties  by 
being  made  public  in  accordance  with  the  local  law,  in  this  claim 
before  the  Commission,  bound  by  the  protocol  to  decide  all  claims 
upon  a  basis  of  absolute  equity,  without  regards  to  objections  of  a 
technical  nature  or  of  the  provisions  of  local  legislation,  this  principle 
can  not  be  an  objection,  and  even  when  made  this  objection  may  be  dis- 
regarded without  impairing  the  great  legal  maxim  locus  regit  actum, 
as  equity  demands,  that  he  should  be  indemnified  who  directly  sufi'ered 
the  losses,  and  it  not  being  the  question  here  who  owned  the  estate 
"La  Fundacion,"  but  who  had  the  free  disposition  over  and  the 
benefit  and  loss  of  the  values  for  which  restitution  must  be  made,  and 
who,  therefore,  in  equity,  owns  the  claim  for  that  restitution  against 
the  Venezuelan  Government; 

Whereas,  then,  it  being  stated  that  the  American  citizen  E.  Heny 
owns  a  claim  against  the  Government  of  the  United  States  of  Vene- 
zuela for  the  partial  destruction  of  the  plantations,  the  confiscation  of 


EEPORT  OF  ROBERT  C.  MORRIS.  99 

horses,  cattle,  and  other  valuables,  and  the  imposing  of  loans  upon  the 
estate  "La  Fuudacion"  during  the  Legalista  revolution  in  1892,  it 
now  remains  to  state,  which  sum  ma}'  in  equity  be  claimed  on  this 
ground; 

And  whereas  the  claimant,  to  prove  the  correctness  of  the  sum,  pro- 
duces an  official  certificate  of  Gen.  Antonio  Fernandez,  civil  and  mili- 
tary chief  of  the  State  of  Zulia,  and  chief  of  the  second  division  of  the 
Army  of  the  Center  during  the  Legalista  revolution,  which  certificate 
was  thereafter  recognized  by  said  General  Fernandez,  and  the  correct- 
ness of  its  contents  affirmed  before  the  court  of  the  first  instance  in 
civil  and  commercial  matters  of  the  Federal  District,  by  him  as  well 
as  by  two  other  sworn  witnesses;  and  whereas  this  certificate  reads  as 
follows: 

Civil  and  ^Iilitary  Headquarters  of  the  State  of  Zulia, 

Maracaibo,  March  7,  1893. 

Citizen:  Gen.  Antonio  Fernandez,  civil  and  military  chief  of  the  State  of  Zulia, 
and  chief  of  the  second  division  of  the  Army  of  the  Center  during  the  Legalista 
revolution,  certifies  that  the  statement  at  the  foot  of  this  document  sets  forth  the  pro 
rata  supplies  furnished  the  army  of  the  revolution  by  the  plantation  called  "La 
Fundacion,"  situated  at  Las  Tejerias,  the  property  of  the  heirs  of  Senor  Carlos 
Benitz,  whose  general  agent  and  representative  is  Senor  E.  Heny. 

Twentv-four  tablones  of  sugar  cane,  at  two  thousand  bolivareseach,  forty-eight  thou- 
sand bolivares;  twelve  tablones  malojo,  at  eight  hundred  bolivares,  nine  thousand 
six  hundred  bolivares;  four  saddle  horses,  at  eight  hundred  bolivares  each,  three 
thousand  two  hundred  bolivares;  one  tablone  maize,  at  six  hundred  bolivares;  two 
cart  horses,  at  eight  hundred  bolivares  each,  one  thousand  six  hundred  bolivares; 
one  breeding  mare,' four  hundred  bolivares;  one  mare  with  her  colt,  four  hundred 
and  eighty  bolivares;  eleven  yokes  of  oxen,  eight  thousand  eight  hundred  bolivares; 
one  single  ox,  four  hundred  bolivares;  lumber,  prepared  for  building  and  other  uses, 
one  thousand  two  hundred  bolivares;  three  kilometers  of  fences  with  their  posts 
destroyed,  one  thousand  six  hundred  bolivares;  in  money,  forced  loans  of  fourteen 
hundred  and  fifty-eight  bolivares,  and  from  the  business  house  at  "Las  Tejerias" 
thirty-three  cattle,  each  one  hundred  and  twenty  bolivares,  three  thousand  nine 
hundred  and  sixty  bolivares;  merchandise  and  tools  from  same  store,  eight  thou- 
sand bolivares;  for  loss  of  time  in  consequence  of  the  war,  forty-eight  thousand 
bolivares;  chief  steward  paid  for  Antonio  Fernandez,  at  the  rate  of  600  bolivares  for 
eight  months,  forty-eight  hundred  bolivares;  sum  total,  ninety-two  thousand  four 
hundred  and  ninety-eight  bolivares. 

And  whereas  by  this  certificate  evidence  is  given  of  the  facts  therein 
mentioned; 

And  whereas  the  estimation  of  the  therein  mentioned  values  has  to 
be  recognized  as  just,  being  the  authentic  estimate  of  the  authority 
that  expropriated  said  values  for  the  benefit  of  the  army; 

And  whereas  it  is  thus  stated  that  claimant  furnished  to  the  army: 

Bolivars. 

24  tablones  of  sugar  cane,  at  2,000  bolivars  each 48,  000 

12  tablones  malojo,  at  800  bolivars  each 9,  600 

1  tablone  maize '^^^ 

4  saddle  horses,  at  800  bolivars  each ''>,  200 

2  cart  horses,  at  800  bolivars  each - L  600 

1  breeding  mare '^^^ 

I  mare  with  her  colt "I'^^O 

I I  yoke  of  oxen 8,  800 

1  single  ox ^00 

Lumber  prepared  for  building  and  other  uses 1,  200 

In  mone V,  forced  loan - 1)  """^ 

And  froiii  the  business  house  in  La3  Tejerias  on  the  estate  "La  Fundacion:" 

33cattle,  each  120  bolivars 3,960 

Merchandise  and  tools  from  same  store <*^>  000 

Chief  steward  paid  for  Antonio  Fernandez,  at  the  rate  of  600  bolivars  per 

month  for  eight  months '^^  ^00 

Sum  total 92,498 


100  REPORT    OK    UOHKRT    C.   MORRIS. 

Tills  sum  liiis  to  be  paid  as  a  restitution  to  the  claimant  by  the  Vene- 
zuelan (iovei'iinient,  and  to  it  should  be  added  the  value  of  three  kilo- 
meters of  fences  and  posts  destroyed  by  the  military  authority,  and 
estimated  by  that  authority  at  1,600  bolivars,  making-  altogether 
i)l:,(»08  bolivars; 

Whereas  the  claimant  further  claims  48,000  bolivars  for  loss  of  time 
in  conseiiuence  of  the  war,  which  sum  is  also  mentioned  in  the  above- 
cited  certificate; 

And  whereas  this  certificate,  although  being  evidence  of  the  facts 
therein  stated,  which  were  the  causa  of  the  debits  incurred  by  the 
Government,  and  containing  the  estimate  by  the  proper  authorities  of 
the  values  claimant  was  deprived  of,  it  is,  however,  not  in  itself  a 
causa,  and  does  not  create  a  debit  where  the  causa  is  wanting; 

And  whereas  the  interruption  of  the  ordinary  course  of  business  is 
an  invariable  and  inevitable  result  of  a  state  of  war,  under  which  all 
inhabitants,  whether  citizens  or  aliens,  have  to  suffer;  and  whereas 
losses  incurred  by  reason  of  such  interruption  are  not  subject  to  com- 
pensation b}''  the  government  within  whose  territory  the  war  exists; 

Whereas,  therefore,  loss  of  time  in  consequence  of  the  war  is  not  a 
loss  whereupon  compensation  can  be  equitably  demanded,  this  part  of 
the  claim  has  to  be  disallowed. 

In  view  of  the  foregoing,  an  allowance  is  made  in  this  claim  for  the 
sum  of  94,098  bolivars,  or  with  interest  thereon  at  3  per  cent  per 
annum  from  March  15,  1893,  the  date  of  the  presentation  of  the  claim 
to  the  Venezuelan  Government,  to  December  31,  1903,  the  anticipated 
date  of  the  final  award  by  this  Commission. 

And  as  to  the  second  claim: 

Whereas  claimant  claims  12,000  bolivars  for  4:^  tablones  of  growing 
sugar  cane,  confiscated  and  set  aside  for  the  food  of  the  soldiers^  and 
taken  and  destroyed  on  the  estate  "  La  Fundacion"  during  the  months 
of  November  and  December,  1899;  and  whereas  the  Venezuelan  Gov- 
ernment produced  a  deed  authenticated  before  the  mercantile  court  of 
first  instance  of  the  federal  district  on  the  28th  of  November,  1898, 
and  recorded  in  the  public  register's  office  of  the  district  of  Ricaurte  on 
December  2  of  the  same  year;  and  whereas  in  this  instrument  it  is 
stated  that  on  the  25th  of  November,  1898,  the  heirs  of  Carlos  Benitz, 
and  among  them  Bertha  Benitz,  acting  under  the  authorization  of  her 
husband,  E.  Hen}',  made  a  sale  to  Mrs.  Altagarcia  H.  de  Ortega  Mar- 
tinez, of  the  same  estate,  "La  Fundacion," [/7'e6^  of  all  inciinifrrances, 
for  the  sum  of  36,000  bolivars,  with  an  agreement  of  resale  within  the 
term  of  one  3'ear; 

And  whereas  it  is  proven  thereby  that  on  the  28th  of  November,  1898, 
the  claimant  Hen}^  without  reserve  as  to  any  of  his  own  rights, 
authorized  his  wife.  Bertha  Benitz,  to  partake  in  a  sale  of  the  said  estate 
free  of  all  incanihrance^^  and  that  this  sale  was  eftected;  whereas, 
therefore,  on  that  date  Heny  lost  or  abandoned  whatever  rights  he 
might  have  had  in  this  estate  or  its  appurtenances  and  revenues; 

And  whereas  no  proof  is  given  that  the  claimant  acquired  or  recov- 
ered any  right  in  the  estate  or  its  appurtenances  and  revenues  later 
than  this  28th  of  November,  1898;  whereas,  therefore,  it  is  not  proven 
that  the  claims  against  the  Government  of  Venezuela  for  restitution 
for  losses  sufl'ered  on  the  estate  "La  Fundacion"  during  the  months 
of  November  and  December,  1899,  is  owned  by  the  claimant,  this  claim 
onuht  to  be  disreofarded. 


EEPORT  OF  ROBERT  C.  MORRIS.  101 

The  United  States  and  Venezuelan  claims  commission,  sitting  at  Cara- 
cas, Venezuela. 

AWARD. 

In  re  the  claim  of  The  United  States  of  America  on  behalf  of  Emerich 
Hen}^  claimant,  against  the  Republic  of  Venezuela,  No.  6,  the  sum  of 
twentj^-three  thousand  nine  hundred  fifty  four  and  25/100  dollars 
($23,954:.25)  in  United  States' gold  coin  is  hereby  awarded  in  favor  of 
said  claimant,  which  sum  shall  be  paid  by  the  Government  of  Vene- 
zuela to  the  Government  of  the  United  States  of  America,  in  accordance 
with  the  provisions  of  the  convention  under  which  this  award  is  made. 

Harry  Barge,  Umjnre. 
Attest: 

J.  Padron  Uztariz, 

Secretanj  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  August  11,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  Ernest  C.  Bliss,  William  B.  Boulton,  John 
Schimmell,  and  Frederick  A.  Dallett,  partners 
doing  business  as  Boulton,  Bliss  &  Dallett,  \  No.  7. 
claimants,  I 

V.  1 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Boulton,  Bliss 
&  Dallett,  a  partnership,  against  the  Venezuelan  Government  in  the 
sum  of  257,027.02  bolivars,  with  interest,  for  services  rendered. 

The  claimants  are  all  residents  and  citizens  of  the  United  States, 
doing  business  under  such  firm  name  in  the  city  and  State  of  New 
York.  They  are  the  owners  of  the  "  Red  D  "  line  of  steamers  registered 
under  the  American  flag  and  engaged  in  trade  between  New  York  City 
and  various  ports  of  the  Republic  of  Venezuela. 

The  claim  here  made  is  for  services  rendered  the  Republic  of  Vene- 
zuela for  the  carrving  of  Venezuelan  mail  from  ports  of  Venezuela  to 
New  York  from  April  1,  1897,  to  December  31,  1902. 

No  express  contract  fixing  a  rate  of  compensation  seems  to  have  been 
made,  but  the  mail  was  carried  ])y  this  line  of  steamers  at  the  request 
of  the  officers  of  the  Republic,  and  upon  their  assurance  that  a  just  and 
reasonable  compensation  would  be  paid. 

Bills  have  been  rendered  to  the  Venezuelan  Government  from  time 
to  time  upon  the  basis  of  a  just  and  reasonable  compensation  for  this 
service,  copies  of  which  are  attached  to  the  memorial,  making  a  total 
of  257,027.02  bolivars. 


102 


REPORT  OF  ROBERT  C.  MORRIS. 


Thoro  van  ])v  lu)  quostioii  but  that  this  is  a  claim  that  should  bo 
allowed  in  full,  with  intcMvst  from  the  dates  of  the  various  accounts 
rendered.  The  service  pci-formed  was  one  for  which  a  liabilit}^  on 
the  part  of  the  Venezuelan  Government  would  bo  imi)lied,  even  if 
there  was  not,  as  in  this  case,  the  ag-roement  on  the  part  of  the  Vene- 
zuelan Government  to  pav  a  just  and  reasonable  compensation.  The 
only  possible  (luostion  is,  what  that  compensation  should  bo.  The  bills 
rendered  arc  upon  the  basis  for  which  similar  services  are  paid  for  b}^ 
other  governments,  members  of  the  Postal  Union,  and  this  would  seem 
to  be  a  proper  rule  by  which  to  determine  a  just  and  reasonable  com- 
pensation. 

An  award  should  therefore  be  made  in  favor  of  the  claimants  for 
the  full  amount  claimed,  with  interest  from  the  date  of  the  presenta- 
tion of  each  of  the  various  accounts.  The  followino-  is  a  statement  of 
the  amount  claimed,  with  interest  thereon: 


Dates  due. 


Amount 
claimed. 


Interest. 


March  31,  1S9S 

March  31,  1899.... 

March  31,  1900 

December  31,  19U0 
December  31,  1901 
December  31, 1902 


Yrs.  Mo. 
5  2 
4  2 
3  2 
2  5 
1  5 
5 


B.  109, 657. 00 
42, 159. 40 
32, 189. 30 
26, 373. 60 
27, 089. 32 
19, 558. 40 


B.  16, 996. 85 
5, 269.  90 
3, 0.57. 95 
1,912.10 
1,151.30 
244.40 


257, 027. 02 


28, 632.  .50 


Respectfull}'  submitted 


Robert  C.  Morris, 
Agent  of  the  United  States. 


[Translation.] 

No.  7. 
ThehonorcMerriemhers  of  the  Yenezxielan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  Messrs.  Boulton,  Bliss, 
and  Dallett,  American  citizens,  and  respectfully  shows  to  this  tribunal: 

The  establishment  of  the  "Red  D"  Line  of  steamers  dates  from  the 
year  1877.  During  a  period  of  more  than  fifteen  years  it  has  not 
occurred  to  its  proprietors  to  claim  from  the  Government  of  Venezuela 
any  indemnity  for  the  services  rendered  in  the  carrying  of  the  mail  of 
the  Republic  to  the  United  States.  It  would  seem,  therefore,  that  the 
rendering  of  this  service  was  to  the  proper  interest  of  the  claimant 
compan3^  The  limitation  of  the  claim  is  also  worthy  of  note — from  the 
year  1897  to  date.  In  the  offices  of  State  there  are  "to  be  found  no  data 
which  w^ould  prove  the  existence  of  a  contract  between  the  "Red  D" 
Company  and  the  Government  of  Venezuela,  which,  it  is  worthy  of  note, 
has  not  accepted  nor  rejected  in  principle  tlie  legitimacy  of  the  claim. 
I  believe,  therefore,  that  this  is  a  matter  which  ought  to  be  adjusted 
exclusively  between  the  Government  and  the  claimant,  and  which  falls 
outside  the  jurisdiction  of  the  arbitral  tribunal,  because  in  no  case  is 
it  derived  from  the  failure  to  execute  a  contract  or  any  act  of  violence 
or  denial  of  justice  on  the  part  of  the  Venezuelan  authorities. 

In  any  case  the  Commission  would  lack  sufficient  elements  to  judge 
concerning  the  justness  of  the  amount  claimed. 

Caracas,  June  27,  1908. 

F.  Arroyo  Parejo. 


EEPOKT  OF  ROBERT  C.  MORRIS.  103 

Before  the  Mixed  ('ommission  organized  under  the  protocol  of  Feb- 

ruar}^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America,  on  behalf 
of  Ernest  C.  Bliss,  William  B.  Boulton,  John 
Schimmell,  and  Frederick  A.  Dallett,  partners 
doing  business  as  Boulton.  Bliss  &  Dallett.  rNo.  7. 
claimants, 

V. 

The  Repitblic  of  Venezuela, 
replication  on  behalf  of  the  united  states. 

The  United  States  makes  replication  to  the  answer  of  Venezuela  in 
the  matter  of  the  claim  of  Boulton,  Bliss  &  Dallett,  and  submits  addi- 
tional evidence  in  said  claim. 

In  the  answer  of  Venezuela  it  is  stated  that  the  establishment  of  the 
"  Red  D"  Line  of  steamers  dates  from  the  year  1877  and  that  during  a 
period  of  more  than  fifteen  years  it  did  not  occur  to  the  proprietors 
of  the  line  to  make  any  chxim  against  the  Government  of  Venezuela 
for  services  rendered  in  the  carrying  of  the  mail  of  the  Republic  to 
the  United  States,  and  therefore  it  would  seem  that  the  rendering  of 
this  service  was  to  the  interest  of  the  claimant  company,  and,  further, 
that  the  limitation  of  the  claim  is  worthy  of  note,  as  it  only  dates  back 
to  the  year  1897. 

In  reply  to  this,  reference  is  made  to  the  letter  of  Messrs.  H.  L. 
Boulton  &  Co.,  agents  of  the  "Red  D"  Line  at  Caracas,  dated  March 
2, 1897,  which  fully  explains  why  no  charge  had  ever  been  made  to  the 
Republic  of  Venezuela  up  to  that  time  and  why,  because  of  the  instal- 
lation of  a  fast  line  of  steamships  and  a  greater  cost  arising  therefrom, 
it  had  become  necessary  to  charge  for  the  transportation  of  mails.^ 
The  "Red  D"  Line  did  not  make  any  charge  for  the  transportation  of 
mails  from  the  United  States  to  Venezuela  until  the  year  1891, 
although  the  ocean  mail  service  was  enacted  in  1881  in  the  United 
States.  Originally  the  "Red  D"  Line  employed  sailing  vessels  in  its 
service.  These  were  subsequently  changed  into  a  steamship  line  of 
chartered  cargo  steamers.  Later  on  the  line  began  to  improve  its 
service,  which  only  reached  its  present  standing  about  the  time  that  it 
began  to  charge  the  Government  of  Venezuela  for  the  transportation 
of  mails. 

The  letter  of  Boulton  &  Co.,  above  referred  to,  addressed  to  the 
ministry  of  fomento,  states: 

But  the  incrcaKe  in  the  hulk  of  husiness  hetween  this  Repuhhc  and  that  of  the 
United  States  has  not  been  so  profitable  to  the  "Red  D  "  Line  of  steamships  as  the 
cost  of  construction  of  its  fleet  was  liigh,  and  likewise  are  the  expenses  necessary  to 
keep  up  its  hifrh  standard,  and  for  this  reason  the  line  will  be  obliged  to  collect  in 
future,  beginning  with  the  1st  of  April  next,  from  the  Government  of  Venezuela  for 
the  transportation  of  its  mails  between  the  Venezuelan  ports  of  its  schedule,  as  well 
as  for  Curacao,  United  States,  and  Europe,  the  following  sea  rates,  viz,  8  boUvares 
l)er  kilogram  gross  of  letters  and  50  centimos  of  a  bolivar  per  kilogram  gross  of 
])rint('<l  matter,  samples,  etc.,  whicli  is  one-half  of  what  the  Government  charges  for 
the  dispatch  of  said  mails. 

The  mails  shall  be  weighed  on  board  of  the  steamers  in  the  presence  of  the  agent 
of  the  Governm(!nt,  and  the  agents  f)f  the  line  in  each  port  will  advise  the  weights 
to  the  corresponding  post-office  to  be  rec<jrded. 


104  REPORT  OF  ROBERT  C.  MORRIS. 

Alt.houji;h  no  specific  response  was  niudo  to  this  letter,  yet  tliere  are 
a  contimunl  series  of  acts  l)y  the  Kepu])lic  of  Venezuela  ratifying  and 
conlirniinji"  the  understanding  contained  in  the  said  letter. 

Reference  is  made  to  the  letter  of  March  4,  1800,  from  Boulton  & 
Co,  to  the  minister  of  posts  and  telegraphs,  complaining  that  the  post- 
master at  La  Guayra  did  not  furnish  to  their  agency  a  note  of  the 
weight  of  the  mails  dispatched  by  him  b}-  their  steamers,  and  in  reply 
thereto  w^e  refer  to  the  letter  of  the  same  date  from  the  ministry  of 
posts  and  telegraphs  to  Messrs.  Boulton  &  Co.,  which  states  that  the 
letter  has  been  referred  to  the  postmaster-general  with  explicit  orders 
to  have  the  postmaster  at  La  Guayra  make  the  necessary  note  of  the 
mails  dispatched  by  the  American  steamers.  Reference  is  also  made 
to  the  letter  of  March  18  of  the  same  year  from  the  postmaster-gen- 
eral which  makes  specific  reference  to  the  letter  of  the  4th  of  March 
from  Boulton  &  Co.,  saying  that  in  reply  to  said  letter  the  postmaster 
at  La  Guaja'a  states: 

I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  10th  instant,  bearing 
No.  114,  in  which  you  transmit  me  the  claim  made  by  Messrs.  H.  L.  Boulton  &  Co. 
about  the  regular  delivery  of  the  M^eight  of  mails  for  the  exterior  sent  by  the  steam- 
ers of  the  "  Red  D"  Line,  and  I  have  the  pleasure  to  inform  you  that  this  service  is 
being  rendered  with  all  regularity. 

On  the  13th  of  December,  1000,  Boulton  &  Co.  addressed  a  letter  to 
the  Government  of  Venezuela  stating  that  a  record  of  the  weight  of 
the  mails  dispatched  by  the  post  office  at  the  port  of  La  Guayra  was 
not  being  kept,  and  that  "  having  urgent  necessity  of  receiving  them 
(the  records)  with  all  regularity,  with  the  object  of  duly  keeping  the 
account  of  the  mail  transported  by  the  steamers  above  named,  we  beg 
3'ou  kindly  to  issue  the  corresponding  order  that  said  data  be  given  to 
us  without  delay,  in  conformity  with  the  resolution  of  the  ministry  of 
posts  and  telegraphs  No.  2221,  dated  the  15th  of  January,  1898."  In 
response  to  this  the  department  of  posts  and  telegraphs  wrote  to  Boul- 
ton &  Co.,  saying  that  as  a  result  of  their  petition,  dated  the  13th 
instant,  the  necessary  orders  were  issued. 

On  the  last  two  pages  of  the  proofs  submitted  will  be  found  the  last 
two  accounts  of  the  weight  of  mails  received  at  Puerto  Cabello  and  at 
Maracaibo  in  May  and  June  of  the  present  year.  Should  the  Com- 
mission desire,  other  records  of  this  nature  can  readily  be  supplied. 

We  submit  that  this  correspondence  on  the  part  of  Boulton  &  Co. , 
and  on  the  part  of  the  Republic  of  Venezuela  and  the  orders  issued  by 
the  Republic  of  Venezuela,  together  wnth  the  statement  as  to  the 
weights  of  mails  supplied  to  the  claimant  company,  and  the  fact  that  no 
exception  has  ever  been  taken  by  Venezuela  to  the  rate  specified,  show 
the  existence  of  a  tacit  agreement  fully  recognized  by  the  Government 
of  Venezuela,  both  as  to  its  liability  and  the  rate  to  be  charged.  This 
claim  should,  therefore,  be  paid  in  full  with  interest  from  the  respec- 
tive dates  of  demand. 

In  conclusion  it  is  important  to  note  that  the  Venezuelan  Govern- 
ment is  a  member  of  the  Universal  Postal  Union,  which  it  entered  by 
act  of  its  Congress  on  the  11th  day  of  April,  1878,  and  morever,  by 
the  Ley  de  Cori-eos  de  los  Estados  Unidos  de  Venezuela,  1898,  Title 
VII,  article  65,  it  is  i:)rovided  that — 

The  carrying  of  foreign  correspondence  shall  be  done  by  means  of  foreign  mail 
ships  under  the  conditions  and  with  the  formalities  established  or  to  be  established 
for  this  international  service. 

In  the  same  ships  and  in  the  same  manner  the  correspondence  from  one  port  shall 
be  sent  to  another  of  the  Republic  where  said  ships  may  touch. 


REPORT  OF  ROBERT  C.  MORRIS.  105 

From  the  above  it  is  evident  why  the  Government  of  Venezuela 
states  in  its  answer  that  it  does  not  reject  in  principle  the  le^itimacj^ 
of  the  claim. 

With  reference  to  the  point  raised  b}^  Venezuela  as  to  the  jurisdic- 
tion of  the  Commission  over  this  claim,  the  United  States  begs  leave 
to  call  the  attention  of  the  Commission  to  Article  I  of  the  protocol, 
which  clearly  shows  that  this  claim  is  one  proper  to  be  brought  before 
it  for  its  decision. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The   United    States  and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of   Ernest  C.    Bliss,    William    B.    Boulton, 
John  Schimmell,  and  Frederick  A.  Dallett, 
partners,  doing  business  as  Boulton,  Bliss  &  V  No.  7. 
Dallett,  claimants, 

V. 

The  Republic  of  Venezuela. 

DECISION  AND  AWARD. 

Opinion  b}^  Doctor  Paul,  Commissioner. 

The  Commission  awards  to  the  claimants  the  sum  of  $27,644.23 
United  States  gold. 

The   United  States    and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of    Ernest    C.    Bliss,  William    B.    Boulton, 
John  Schimmell,  and  Frederick  A.  Dallett,  | 
partners,  doing  business  as  Boulton,  Bliss  &  \  No.  7. 
Dallett.  claimants. 

The  Republic  of  Venezuela. 

Doctor  Paul,  Commissioner : 

The  United  States  presents  the  claim  of  Boulton,  Bliss  &  Dallett 
against  the  Government  of  Venezuela  for  the  sum  of  Bs.  257,027.02 
for  services  rendered. 

The  claimants  are  the  owners  of  the  "Red  D"  Line,  which  runs 
between  New  York  and  several  ports  of  the  Republic  of  Venezuela. 

The  claim  is  founded  on  services  rendered  to  the  Government  of  the 
Republic,  for  (-urrNnng  the  mail  from  the  Venezuelan  ports  to  New 
York,  from  April  f,  1897,  to  December  31, 1902,  and  also  on  the  interest 
of  the  stated  sums  in  which  j-uch  services  are  annually  estimated. 

The  claimants  acknowledge  that  no  express  contract  exists  lixing  a 
rate  of  compensation,  but  that  the  mail  has  y)een  carried  by  their 
steamship  line,  at  the  request  of  employees  of  the  Government  of  the 
Republic,  and  under  the  promise  that  they  should  be  paid  a  just  and 
reasonable  compensation. 


100  REPORT  OF  ROBERT  0.  MORRIS. 

The  agents  of  Boulton,  Bliss  &  Dallett,  in  Caracas,  ha\c  presented, 
from  time  to  time,  memorials  to  tlic  (Tovernment  of  Venezuela,  indi- 
cating the  weight  of  the  bags  that  Avere  carried;  and  in  a  letter  dated 
march  W  18!»9,  the  said  agents  coini)lained  that  until  such  date  negoti- 
ations have  not  been  entered  upon  with  a  view  to  carrying  at  a 
contract. 

In  view  of  the  facts,  as  the}^  appear  from  the  documents  submitted 
with  the  claim,  it  is  necessary,  owing  to  the  especial  nature  of  the 
same,  to  determine  if  the}^  really  constitute  a  proper  })asis  for  pre- 
sentina"  a  claim  to  be  examined  and  decided  b}^  this  Commission. 

Tn  accordance  with  article  1  of  the  protocol  of  Washington,  it  is 
incumbent  upon  this  Commission  to  examine  and  decide  "all  claims 
owned  by  citizens  of  the  United  States  of  America  against  the  liepul)lic 
of  Venezuela,  which  have  not  been  settled  by  diplomatic  agreement  or 
by  ar))itration  between  the  two  governments." 

It  is  not  opportune  to  make  au}^  comments  with  regard  to  the  limi- 
tations and  pertinency  that  enter  as  elements  for  the  qualification  of 
the  claims  submitted  to  the  jurisdiction  of  the  Commission  as  estab- 
lished by  the  terms  of  said  article  of  the  protocol;  but  it  is  necessary 
to  fix  the  meaning  of  the  word  "claim,"  so  as  to  be  able  to  infer  if  the 
demand  presented  in  the  name  of  Boulton,  Bliss  &  Dallett  properly 
constitutes  a  claim. 

The  word  "claim,"  in  its  most  general  meaning  and  in  its  juridic 
sense,  is  equivalent  to  a  pretention  to  obtain  the  recognition  or  pro- 
tection of  a  right,  or  that  there  should  be  given  or  done  that  which  is 
just  and  due. 

In  the  meaning  of  the  word  "claim  "there  is  therefore  included  any 
kind  or  character  of  demand  which  involves  a  principle  of  justice  and 
equity;  and  this  in  the  abstract  applies  to  the  jurisdictional  faculties 
of  this  Commission  and  the  circumstances,  which  in  accordance  with 
the  especial  terms  of  article  1  of  the  protocol  limits  that  jurisdiction. 
The  amplitude  of  the  phrase  "all  claims"  makes  it  possible  that  even 
the  demands  which  are  unforeseen  by  the  law,  or  which,  b}^  the  absence 
of  proper  agreements,  lack  juridical  foundation,  entitling  them  to  be 
examined  and  confirmed  under  the  proceedings  of  an  ordinary  court, 
must  be  considered  by  this  tribunal  of  exceptional  jurisdiction  which 
has  to  decide  them  upon  their  merits  and  upon  a  basis  of  absolute 
equity.  • 

In  accordance  with  this  reasoning,  the  claim  presented  by  the  honor- 
able agent  of  the  United  States,  in  the  name  of  Boulton,  Bliss  &  Dallett, 
possesses  the  necessary  qualihcation  to  be  examined  and  decided  by  this 
Commission,  under  the  principles  of  justice  and  equity  which  should 
guide  its  judgments. 

The  rendering  of  services  is  the  fundamental  fact  of  the  claim  in 
question.  These  services  consist  in  the  carrying  of  the  mail  by  the 
steamships  of  the  "Red  D"  Line  from  April  1,  1897,  to  December  31, 
190:2.  The  especial  nature  of  this  service  requires,  in  order  to  estab- 
lish the  juridical  bound  which  create  obligations  and  rights  between 
the  two  parties,  the  existence  of  an  agreement  or  mutual  understand- 
ing will  establish  the  precise  price  which  must  be  paid.  The  efficacy 
of  the  convention  or  agreement  is  of  primary  consideration  in  this  kind 
of  operations.  Without  it  the  case  for  services  does  not  exist,  but 
only  is  a  gratuitous  service.  This  last  position  was  the  one  that  Boul- 
ton, Bliss  &  Dallett  maintained  before  the  Government  of  Venezuela 


REPORT  OF  ROBERT  C.  MORRIS  107 

for  nearly  half  a  century  from  the  date  that  the  vessels  between  New 
York  and  the  Venezuelan  ports  began  their  running  until  the  2d  of 
March,  on  which  date  was  notified  the  minister  of  fomento  to  the  effect 
that  from  April  1  of  that  year  they  would  charge  to  the  Venezuelan 
Government  for  the  carrj^ing  of  mail  bags,  not  only  to  the  ports  of 
Venezuela  that  the  steamers  visit,  but  to  Curasao,  United  States,  and 
Europe  the  following  sea  prices:  Eight  bolivars  per  gross  kilogram  of 
letters  and  cards  and  fift}"  one-hundredths  of  a  bolivar  per  gross  kilo- 
gram of  printed  matter. 

The  agents  of  the  line  indicated  in  the  same  letter  of  March  2, 1897, 
that  the  bags  should  be  weighed  on  board  of  the  steamers  before  the 
agents  of  the  Government  and  the  agents  of  the  line  in  each  port, 
advising  the  weights  to  the  respective  post-office  for  its  record. 

On  January  15, 1898,  the  ministry  of  fomento  issued  under  No.  2281 
a  resolution  ordering  to  the  La  Guaira  post-ofiice  master  to  give  to  the 
agents  of  the  "Red  D"  Line  a  note  of  the  weight  of  the  bags  sent  by 
the  American  steamers,  and  on  March  6, 1899,  and  December  10, 1900, 
the  same  ministry,  on  petition  of  Messrs.  Boulton  &  Co.,  repeated  his 
instructions  in  order  to  give  to  the  said  agents,  through  the  correspond- 
ing post  employees,  the  note  of  the  weight  of  the  bags  embarked  on 
board  the  steamers  of  the  line. 

Two  elements  tend  to  define  the  relations  established  between  Messrs. 
Boulton,  Bliss  &  Dallett  and  the  Venezuelan  Government  with  refer- 
ence to  the  transportation  of  the  mail,  as  it  appears  from  the  notes 
exchanged  between  the  two  parties  since  March,  1897.  The  first  is 
that  Boulton,  Bliss  &  Dallett  should  charge  the  Government  from 
April  1  of  the  same  year  8  bolivars  per  gross  kilogram  of  letters  and 
cards  and  fifty  one-hundredths  of  a  bolivar  per  kilogram  of  printed 
matter  and  samples,  and  the  second  that  the  Government  virtually 
accepted  the  said  tariff  from  the  moment  that  it  ordered  its  post-office 
employees  to  take  the  weight  of  the  bags  and  send  it  each  time  to 
Boulton  &  Co. ,  as  it  was  requested  by  them,  in  order  to  make  the  liqui- 
dation of  the  amount  which  the  Government  should  have  to  pa}"  for  the 
service.  These  two  elements  are  enough  to  deduct  in  justice  the  fol- 
lowing conclusion:  The  Government  of  V^enezuela  owes  to  Boulton, 
Bliss  &  Dallett  for  carrying  the  mail  on  the  steamers  of  the  "Red  D" 
Line  from  April  1,  1899,  to  December  31,  1902,  the  resulting  sum  of 
the  two  factors  agreed  b}'  both  parties,  gross  weight  in  kilograms  of 
letters  and  cards  and  gross  weight  in  kilograms  of  printed  matter  and 
samples,  and  the  sum  of  8  bolivars  per  kilogram  for  letters  and  cards 
and  fifty  one-hundredths  of  a  bolivar  per  kilogram  of  printed  matter 
and  samples. 

This  could  be  a  simple  arithmetic  calculation,  which  would  not 
embarrass  the  Conmiission;  but  one  of  the  factors  is  lacking,  nameh^, 
the  separated  weight  of  the  letters  and  printed  matter,  as  the  bags 
which  the  post-office  employees  weighed  contained  indistinctly  letters, 
cards,  printed  matter,  and  samples,  is  which  has  been  taken  by  Messrs. 
Boulton  &  Co.,  to  establish  their  account  with  the  Government,  to 
make  an  ar])itrary  distribution  of  a  sixth  part  for  letters  and  cards 
and  five-sixths  parts  for  printed  matter  and  samples.  There  has  not 
been  presented  before  this  Commission  any  proof  or  information  which 
may  establish  that  such  distribution  is  equitable  and  well  founded, 
and,  in  consequence,  the  real  weight  of  letters  and  cards  and  that  of 
printed  matter  and  samples,  remains  undetermined  in  the  total  sum 


108  REPORT  OF  ROBERT  C.  MORRIS. 

Avhic'h  the  gTOSS  weight  of  the  bags  represents  in  the  period  of  five 
y(>ars  nine  months  comprised  in  their  claim. 

It  is  ()])i)ortuno  to  point  out  the  difi'erence  exhibited  ])y  the  first  let- 
ter of  Boulton  tSl  Co.,  date  of  June  14,  1898,  which  gives  as  gross 
weight  of  the  bags  which  Avere  carried  by  the  steamers  during  a  year 
froni  April  1,  181»7,  to  March  31,  1898,  the  sum  of  62,G01,149  grams, 
in  comparison  to  that  of  May  9,  1899,  corresponding  to  the  preceding 
year,  which  makes  the  weight  of  the  bags  to  I)e  21,091, 070  grams  less 
weight  in  one  year,  quite  the  two-thirds.  There  must  exist  a  gi'ave 
error  in  the  first  calculation,  since  from  April  1,  1898,  to  April  1,  1899, 
the  business  conditions  of  the  country  were  the  same  as  those  of  the 
preceding  year,  Avithout  the  existence  of  any  especial  motive  to  which 
could  be  attributed,  such  extraordinary  diminution  of  volume  and 
weight  of  the  United  States  and  Europe's  mail.  This  observation  is 
confirmed  by  the  facts  belonging  to  the  following  3^ears,  which  have  a 
reasonable  proportion,  as  it  is  proven  b}^  the  following  figures: 

Grams. 

From  April  1,  1898,  to  April  1,  1899 ,. 24,091,076 

From  April  1,  1899,  to  April  1 ,  1900  (time  of  war) 18,  398,  396 

From  April  1,  1900,  to  December  31,  1900 15, 070,  680 

From  December  31,  1900,  to  December  31, 1901 15,  479, 608 

From  December  31,  1901,  to  December  31,  1902  (period  of  war) 14, 176,  231 

As  the  Commission  has  no  means  of  ascertaining  the  precise  data 
which  establish  clearly  the  gross  weight  of  the  two  classes  in  which 
the  difi'erent  kinds  of  mail  were  proposed  to  be  divided,  as  accepted 
by  the  Venezuelan  Government,  and  considering  also  that  the  figures 
given  for  the  gross  weight  of  the  bags  of  the  year  1897  to  1898  are 
not  in  proportion  with  the  weight  of  the  following  years,  and  the 
absence  of  an}^  document  to  prove  the  exactness  thereof;  and,  further- 
more, as  this  claim  has  to  be  decided  only  on  the  proofs  and  informa- 
tion presented  by  both  parties  on  the  basis  of  absolute  equity,  and 
taking  also  in  consideration  that  Messrs.  Boulton  &  Co.,  agents  in 
this  city  of  the  "Red  D"  Line,  have  several  times  made  proposals  to 
the  Venezuelan  Government  to  celebrate  a  contract  fixing  an  annual 
sum  for  the  carrying  of  the  mail,  it  is  my  opinion  that  it  is  necessary 
to  estimate  the  average  of  the  accounts  as  made  up  by  the  agents  of 
Boulton,  Bliss  &  Dallett  for  the  last  five  years.  That  average  gives 
the  sum  of  29,471  bolivars,  which  I  consider  admits  of  a  reduction  to 
the  sum  of  25,000  bolivars  as  the  natural  rebate  which  all  debtors  are 
entitled  to  when  the  creditor  fixes  the  price  for  services  rendered, 
especially  when  they  amount  to  a  considerable  sum  extending  over  a 
period  of  years. 

Having  thus  determined  the  annual  price  for  the  carrying  of  the 
mail,  and  calculating  the  time  elapsed  from  April  1, 1897,  to  December 
81, 1902,  or  five  years  and  nine  months,  the  value  of  the  service  comes 
to  the  sum  of  113,750  bolivars. 

With  reference  to  the  interest,  the  circumstances  set  forth  in  this 
opinion  make  it  apparent  that  the  claim  is  presented  under  conditions 
which  do  not  justify  the  allowance  of  interest. 

Therefore  an  award  is  hereby  made  in  favor  of  Boulton,  Bliss  & 
Dallett  for  the  sum  of  143,750  bolivars,  equivalent  in  American  gold 
at  the  average  rate  of  exchange  to  $27,644.23. 


REPORT  OF  ROBERT  C.  MORRIS.  109 

The  United  States  and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Ernest 
C.  Bliss,  William  B.  Boulton,  John  Schimmell,  and  Frederick  A.  Dallett, 
partners,  doing  business  as  Boulton,  Bliss  &  Dallett,  claimants,  against 
the  Republic  of  Venezuela.  No.  7,  the  sum  of  twent3^-seven  thousand 
six  hundred  forty-four  and  j%%  dollars  ($27,6i4.23),  in  United  States 
gold  coin  is  hereby  awarded  in  favor  of  said  claimants,  which  sum  shall 
be  paid  by  the  Government  of  Venezuela  to  the  Government  of  the 
United  States  of  America  in  accordance  with  the  provisions  of  the 
convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Coininissio7ier  on  the  jjart  of  the  United  State  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  ixirt  of  Venezuela. 
Attest  to  award: 

Harky  Barge,  President. 
Attest: 

J.  Fadron  Uztariz, 

Secretary  on  the  jpart  of  Venezuela. 
Rudolf  Dolge, 

Secretary  on  the  jjart  of  the  United  States  of  America. 

Delivered  July  17,  1903. 


Before  the  Mixed  Commission  oganized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States   of  America  on   behalf 
of  Leonard  B.  Smith,  claimant, 

V. 

The  Republic  of  Venezuela. 


^No.  8. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 
I. 

statement  of  fact. 

The  United  States  presents  in  this  case  the  claim  of  Leonard  B. 
Smith  for  $6,239.32,  and  interest  amounting  to  $1,007.65. 

The  claimant  is  a  native-born  citizen  of  the  United  States,  who  has, 
since  the  year  1876,  resided  in  the  city  of  Curasao,  West  Indies.  He 
is  the  sole  owner  of  the  steamship  A/lia/ice,  built  at  Curasao  in  1895, 
originally  registered  as  a  Dutch  ship  and  subsequently,  in  February, 
1897,  registcj-ed  as  a  Domincan  vessel  in  the  name  of  Carlos  A.  Mota, 
who  had,  however,  no  interest  in  the  vessel,  which  is  and  has  remained 
the  property  of  the  claimant. 


110  REPORT  OF  ROBERT  0.  MORRIS. 

On  flime  15,  1897.  the  All  lance  left  the  port  of  San  Domingo  bound 
for  Curavao.  ^Mooting  adver.sc  winds  and  her  supply  of  coal  running 
out,  the  vessel  drifted  before  the  wind  and  was  blown  upon  the  bar  at 
Maraeaibo. 

The  next  day  she  put  into  the  port  of  Maracaibo  in  distress.  Imme- 
diately upon  the  arri\al  of  the  Alliance  she  was  seized  by  the  collector 
of  the  port  of  ]\iaracaibo  on  the  charge  of  the  violation  of  the  custom 
hiAvs  of  Venezuela,  and  was  detained  by  the  Venezuelan  authorities 
until  the  11th  day  of  Januar}^,  1898.  In  the  meantime,  by  a  decree 
of  tlie  Venezuelan  national  court  of  finance,  rendered  on  August  14, 
1897,  the  AU'iance  was  held  guiltless  of  any  violation  of  the  custom 
laws  of  Venezuela,  and  this  decree  was  affirmed  by  the  high  court  of 
Venezuela  on  the  12th  day  of  November,  1897. 

The  damages  claimed  are  $3,439.32  for  expenses,  $2,000  for  the  cost 
of  necessary  repairs  due  to  the  neglect  of  the  vessel  while  in  the  cus- 
tody of  the  Venezuelan  authorities,  and  $800  for  interest  on  the 
investment  or  loss  of  use  of  the  vessel. 

Upon  this  claim  being  submitted  to  the  Venezuelan  authorities  they 
presented  as  objections  to  the  claim,  first,  that  they  had  a  right  to 
detain  the  vessel  until  the  question  of  violation  of  custom  regulations 
had  been  properly  determined  by  their  own  courts;  second,  that  the 
vessel  was  registered  as  a  Dominican  vessel;  and,  third,  that  the 
claimant,  if  he  have  any  claim,  must  first  have  recourse  to  the  Vene- 
zuelan courts  for  its  adjudication,  and  not  to  an  intervention  on  behalf 
of  the  United  States  Government. 

n. 

The  seizure  of  the  schooner  Alliance  hy  the  Yeneziielan  authorities  was 
wholly  umvarranted  and  unjustified  hy  even  any  prohahle  cause. 

An  examination  of  the  vessel's  papers  submitted  in  evidence  in  this 
case  will  show  affirmatively  that  there  were  not  in  the  papers  of  this 
vessel  any  irregularities  whatsoever  raising  the  slightest  question  of 
a  violation  on  the  part  of  this  vessel  of  any  custom  regulations  of  the 
Republic  of  Venezuela. 

The  seizure  of  the  vessel  by  the  Venezuelan  authorities  was  wholly 
unjustified.  This  has  not  only  been  found  to  be  the  fact  by  the  courts 
of  that  countr}",  but  it  also  appears  from  these  decisions  and  from  the 
vessel's  papers  that  there  was  no  warrant  of  probable  cause  justifying 
in  any  sense  of  the  word  the  taking  of  the  proceeding.  There  may, 
of  course,  be  proper  cases  in  which  circumstances  would  warrant  the 
seizure  of  the  vessel  and  holding  it  pending  an  adjudication,  and  if 
that  adjudication  was  had  without  unreasonable  delay,  that  circum- 
stance wTmld  act  as  a  mitigation  of  damages,  but  such  is  not  the  fact 
in  this  case,  nor  has  that  principle  any  application.  Here  the  vessel 
was  seized  wantonly,  without  anything  in  its  sailing  papers  or  in  the 
circumstances  of  the  case  warranting  any  such  action.  On  the  con- 
trary, it  was  a  vessel  that  had  put  into  this  port  in  dire  distress,  as  the 
result  of  the  unavoidable  calamities  of  the  sea. 

To  say  that,  as  a  matter  of  international  law,  a  vessel  clearing  for 
one  port  and  forced  by  disaster  and  shipwreck  to  take  refuge  in  a  port 
for  which  it  did  not  clear,  is  therefore  guilty  of  any  violation  of  the 
custom  regulations  of  the  country  in  whose  port  it  is  forced  to  take 


TIEPOET    OF    EOBEET    C.   MORRIS,  ]  1 1 

shelter,  is  too  manifestly  absurd,  perhaps,  to  need  argument.  The 
nation  that  would  undertake  to  sustain  such  a  proposition  would  be 
guilty  of  a  violation  of  the  most  fundamental  principles,  not  only  of 
the  comity  of  nations,  but  of  the  duties  of  humanity. 

And  yet  it  is  apparent  from  the  facts  in  this  case  that  this  fact  that 
the  sailing  papers  of  the  vessel  were  not  for  the  port  of  Maracaibo  was 
the  only  circumstance  that  led  the  Venezuelan  authorities  to  think 
themselves  justified  in  seizing  the  vessel. 

III. 

■    The  registration  of  the  vessel  under  Dominican  law  is  no  defense. 

Whether  it  was  or  was  not  any  violation  of  the  laws  of  San  Domingo 
for  the  vessel  to  have  been  registered  under  its  laws  in  the  name  of 
one  not  the  actual  owner,  or  when  the  vessel  actually  belonged  to  the 
citizens  of  another  country,  is  wholly  immaterial  to  this  present  con- 
troversy. The  fact  remains  and  is  clearly  established  that  the  vessel 
belonged  to  the  claimant  in  this  case,  and  that  he  is  the  person  who 
has  been  injured  by  the  illegal  acts  complained  of. 

The  protocol  under  which  this  Commission  has  been  appointed  calls 
for  the  consideration  of  all  claims  of  citizens  of  the  United  States 
against  the  Republic  of  Venezuela.  This  must  be  regarded  as  one  of 
such  cases,  nor  should  the  Venezuelan  Government  be  allowed  to 
escape  responsibility  by  a  pretense  of  an  irregularity  which  is  in  no 
wav  affected  here  and  furnished  no  excuse  for  the  wrongs  done  by  her 
in  'this  case.  The  necessary  question  before  this  Commission  is 
whether  the  claimant  is  a  citizen  of  the  United  States  and  has  been 
injured  l)y  any  acts  for  which  the  Government  of  Venezuela  is  respon- 
sible. Of  this  fact  there  can  be  no  question.  This  Commission  is  not 
called  upon  to  nor  can  it  consider  whether  the  claimant  has  been 
guilty  of  any  irregularities  toward  the  Government  of  San  Domingo 
or  otherwise,  in  no  wise  entering  into  or  forming  any  basis  of  excuse 
for  the  acts  done  bv  the  Venezuelan  Government. 

It  is  manifest  that  this  claim  of  the  Dominican  registration  of  this 
vessel  is  now  brought  forward  to  avoid  responsibility  for  wrongful 
acts  committed  at  the  time  without  a  shadow  of  an  excuse. 

IV. 

The  ])osition  of  the  Venezuelan  Government  that ^  this  claim  should 
have  heen  submitted  to  its  local  tribunals  for  adjudication  is  not  well 
founded. 

Without  in  any  way  controverting  the  truth  of  any  of  the  state- 
ments on  which  this  claim  is  based  or  the  correctness  of  the  amount 
claimed  or  its  own  liability  therefor,  the  authorities  of  the  Republic  of 
Venezuela  contended  merely  that  the  Government  of  the  United  States 
ought  not  to  intervene  because  the  claimant  had  a  proper  and  sufficient 
remedy  in  the  local  tribunals  of  that  country.  This  position  of  the 
Republic  of  Venezuela  was  wholly  untenable.  The  cases  in  which  one 
State  has  the  right  to  intervene  to  protect  the  rights  of  its  citizens 
resident  or  temporarily  within  the  domain  of  another  State  fall  into 
two  general  classes,     the  first,  cases  in  which  the  citizen  has  received 


112  REPORT  OF  ROBERT  C.  MORRIS. 

positive  maltreatment  at  the  hands  of  the  foreign  government  or  those 
tor  whom  it  is  directly  responsible.  The  second,  cases  in  which  the 
citizen  has  been  denied  ordinary  justice  in  the  foreign  country.  In 
this  latter  class  a  distinction  again  is  to  be  made  ])etween  cases  of  a 
denial  of  justice  in  actions  against  the  foreign  government  as  such  and 
those  in  which  there  is  a  denial  of  justice  in  suits  between  individuals 
to  such  an  extent  that  the  foreign  government  may  be  held  responsible. 

The  right  of  intervention  in  the  first  class  of  cases  is  direct  and 
immediate,  and  there  is  no  necessity  for  resort  to  local  tribunals  as  a 
condition  precedent  to  an  application  to  the  home  government. 

The  wrongs  here  complained  of,  arising  from  the  illegal  seizure  of 
this  vessel  by  the  Venezuelan  authorities,  makes  the  case  clearly  one 
of  the  first  class. 

Even  if  we  were  to  concede  that  the  claims  were  of  such  a  character 
as  ought  to  be  first  submitted  before  a  local  tribunal  for  adjudication, 
3'et  the  Republic  of  Venezuela  is  not  in  a  position  to  call  for  such  sub- 
mission. The  decree  of  1873  establishing  a  high  federal  court  before 
which  all  claims  against  the  Government  must  be  adjudicated  contains 
provisions  which  make  the  latter  procedure  practically  a  denial  of 
justice.  It  is  provided  in  substance  in  that  decree  that  should  it 
clearly  appear  that  any  claimant  has  exaggerated  the  injuries  sufi'ered 
by  him  he  shall  lose  whatever  right  he  ma}^  have  had,  and  incur  a  fine 
of  from  500  to  3,000  venezolanos  (|500  to  |3,000)  or  imprisonment 
from  six  to  twenty-four  months.  The  letter  of  the  Venezuelan 
authorities,  in  citing-  the  rendition  of  this  decree,  proceeded  with  the 
statement  that  in  1869  a  report  was  made  to  the  Venezuelan  Congress 
that  the  revenues  of  the  country  were  being  consumed  in  the  pajmient 
of  foreign  claims,  and  calling  upon  Congress  for  some  remedy  in  the 
situation.  This  connection  makes  it  upon  their  own  statement  mani- 
fest that  this  decree  was  devised  in  its  present  form  as  an  express 
means  of  preventing  foreigners  from  instituting  or  prosecuting  claims 
against  the  Venezuelan  Government.  This  was  its  origin  and  spirit, 
and  such  has  been  its  manifest  effect. 

It  would  be  useless  to  discuss  this  situation  further.  It  is  clear 
that  a  court  so  established,  and  the  right  of  appeal  to  which  it  was 
coupled  with  such  restrictions,  can  not  be  compared  either  to  the 
Court  of  Claims  of  the  United  States  or  to  any  other  judicial  tribunal 
to  which  it  has  been  held  that  claims  of  foreigners  as  well  as  domestic 
citizens  should  first  be  submitted. 

The  views  above  expressed  are  clearly  supported  by  the  authorities. 
See  Phillimore's  International  Law,  Vol.  II,  pages  3  et  seq.,  and 
especially  the  following  language  on  page  12: 

VII.  It  may  indeed  happen,  as  the  same  author  most  justly  observes,  that  the 
debtor  may  adopt  measures  of  domestic  finance,  so  fraudulent  and  iniquitous,  so 
evidently  repugnant  to  the  first  principles  of  justice,  with  so  manifest  an  intention 
of  defeating  the  claims  of  its  creditors,  as  to  authorize  the  government  of  the  creditor 
in  having  recourse  to  acts  of  retaliation,  reprisals,  or  open  war — such  measures,  for 
instance,  as  the  permanent  depreciation  of  coin  or  paper  money,  or  the  absolute 
repudiation  of  debts  contracted  on  the  public  faith  of  the  country. 

The  instances  above  quoted  are  matters  of  finance.  The  same 
principle  applies  absolutely  to  an  attempt  to  accomplish  the  same  thing 
by  a  provision  such  as  was  made  b}^  Venezuela  in  this  case  making 
recourse  to  its  tribunals  subject  to  risk  both  of  financial  loss  and  per- 
sonal imprisonment. 


EEPORT  OF  ROBERT  C.  MORRIS.  113 

V. 

The  'position  of  the  Venezuela  Government  that  this  claim  should 
have  heen  submitted  to  its  local  tribtmals^  even  if  well  founded^  has 
l)een  expressly  waived  l)y  the  signing  of  the  protocol  tinder  which  this 
Commission  is  appointed. 

Whether  the  position  of  Venezuela  as  outlined  in  the  correspondence 
of  its  diplomatic  representatives  with  those  of  the  United  States  is  or 
is  not  well  founded,  it  has  never  been  recognized  by  the  United  States, 
but  has  long  been  a  subject  of  controversy  between  the  two  countries 
and  has  been  one  of  the  essential  causes  for  nonsettlement  of  many  of 
the  controversies  which  are  to  be  submitted  to  this  Commission.  It 
was  largely  if  not  entirely  because  of  disagreement  with  respect  to 
this  position  of  Venezuela  that  the  two  countries  were  unable  to 
amicably  agree  upon  the  settlement  of  this  and  other  claims.  And  it 
was  because  of  this  disagreement  on  this  question  to  a  large  extent 
that  there  arose  the  necessity  of  this  Commission. 

The  language  of  the  protocol  itself  can  bear  no  other  interpretation. 
Under  its  provisions — 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  and  which  have  not  been  settled,  *  *  *  and  which  shall  have  been 
presented  to  the  commission  hereinafter  named,  *  *  *  shall  be  examined  and 
decided  by  a  mixed  commission.  *  *  *  The  commissioners  or,  in  case  of  their 
disagreement,  the  umpire  shall  decide  all  claims  upon  a  basis  of  absolute  equity 
without  regard  to  objections  of  a  technical  nature  or  of  the  provisions  of  local  legisla- 
tion. 

It  would  have  been  difficult  to  have  chosen  language  more  directly 
appl3nng  to  this  position  which  has  been  taken  by  the  Republic  of 
Venezuela  in  the  past.  The  express  exclusion  from  the  consideration 
of  the  Commissioners  of  any  local  legislation  excludes  the  decree  of 
1873  as  well  as  any  other  local  enactments — for  by  the  word  local  we 
are  to  understand  Venezuelan  law  or  United  States  law  as  the  case  may 
be  as  being  local  to  each  of  those  countries  in  distinction  from  those 
principles  of  natural  law  which  are  alone  applicable  as  between  two  or 
more  countries. 

It  has  moreover  been  expressly  and  repeatedly  held  that  the  reach- 
ing of  an  agreement  for  arbitration  or  the  appointment  of  a  commis- 
sion under  circumstances  such  as  this,  is  an  express  waiver  of  any  pi'o- 
visions  of  law  whereby  the  claims  should  first  have  been  submitted  to 
local  tribunals. 

In  the  controv^ersies  which  arose  betweecn  the  United  States  and 
Great  Britain  under  the  treaty  of  November  19, 1791,  commonly  called 
the  Jay  Treat}^  it  was  and  had  been  contended  by  Great  Britain  that 
the  claims  of  citizens  of  the  Ihiited  States  could  and  should  be  first 
submitted  to  the  determination  of  the  local  tribunals  of  England,  But 
it  was  held  by  the  commissioners  that  the  making  of  the  treaty  within 
certain  lines  defined  by  it  as  to  the  class  6f  cases  which  should  betaken 
up  substituted  the  conunissioners  as  a  court  absolutely  in  place  of 
any  such  local  tribunals,  and  was  a  waiver  of  any  claim  that  the  cases 
should  first  have  been  submitted  to  such  local  tribunals  for  adjudication. 
(3d  Moore's  International  Arbitration,  pp.  3073,  3101  to  3115,  31(51 
to  3206.)  See  also  the  opinion  of  William  R.  Day,  as  an  arbitrator 
appointed  under  the  protocol  between  the  United  States  and  the 
S.  Doc.  317,  58-2 8 


114  REPORT  OF  ROBERT  C.  MORRIS. 

Republic  of  Haiti,  in  which  Judo-o  Day  used  tho  following"  language 
■Nvith  iH^foivnoe  to  a  .siniilur  rlaim  that  the  cases  should  have  ])een  first 
submitted  to  adjudication  of  local  tribunals: 

The  arbitrator  in  this  case,  however,  is  given  jurisdiction  of  the  differences  between 
the  two  governments  by  the  terms  of  the  arbitral  agreement,  giving  him  jurisdiction 
and  authority  to  determine  certain  differences.     (For.  Rels.  1901,  p.  275.) 

The  })rotocol  in  this  case  having  given  this  Commission  power  to 
hear  and  determine  all  claims  owned  by  citizens  of  the  United  States 
against  the  liepublic  of  Venezuela,  its  power  is  unlimited  to  hear  and 
determine  all  such  claims  whether  they  might  or  might  not  have  been 
otherwise  a  proper  subject  for  adjudication  by  some  local  tribunal  of 
the  Republic  of  Venezuela. 

The  contention  of  the  Republic  of  Venezuela  in  this  respect  has 
therefore  been  abandoned,  and  the  submission  of  all  controversies  to 
this  Commission  conceded  by  its  executing  the  protocol  under  which 
this  Commission  is  appointed. 

VI. 

The  Yenezuelo/n  Government  is  llahle  in  this  case  for  the  illegal  seizure 
and  undue  detention  of  this  vessel^  and  the  damages  consequent  thereon. 

It  being,  as  we  have  seen,  cleai-  that  the  seizure  of  this  vessel  was 
without  warrant  even  of  probable  cause,  the  Venezuelan  Government 
must  be  held  liable  for  the  resultant  damage.  This  right  to  relief  is 
in  this  case  increased  by  the  fact  that  the  matter  was  unreasonably  an(^ 
unnecessarily  drawn  out  in  the  Venezuelan  courts  in  the  taking  of  an 
unnecessary  appeal,  by,  in  fact,  the  taking  into  court  at  all  of  a  ques- 
tion of  this  character,  and  over  and  beyond  that,  the  retention  of  the 
vessel  for  nearly  two  months  after  a  final  decree  against  the  position 
of  the  Government.  The  right  to  relief  and  damages  in  such  a  case 
is  clearly  established.  See  the  opinion  of  the  Commission  in  the  case 
of  Callahan  v.  Mexico,  set  out  in  full  in  Moore's  International  Arbi- 
trations, Volume  IV,  page  434G. 

VII. 

An  award  slujuld  he  made  in  this  case  for  the  full  amount  claimed., 
with  interest. 

The  claim  for  damages  in  this  case  is  for  the  bare  expenses  attendant 
upon  the  seizure  of  the  vessel,  the  necessary  repairs  due  to  the  neglect 
of  the  vessel  during  its  retention  by  the  Venezuelan  authorities,  and 
an  amount  for  the  loss  of  use  of  the  vessel  equal  to  interest  on  the 
investment. 

We  think  it  is  clear  that  this  is  a  more  than  moderate  demand.  The 
case  is  one  which,  in  its  unusual  features,  would  call  for  the  allowance 
of  punitive  damages,  as  it  is  hard  to  conceive  of  the  seizure  of  a  vessel 
under  more  unwarrantable  circumstances,  nor  of  a  more  arbitrary 
detention  of  the  vessel  during  the  attempt  to  obtain  a  confiscation  or 
impose  a  fine  upon  it  for  something  that  on  the  face  of  the  case,  in  the 
first  instance,  had  no  foundation,  and  that  in  violation  of  every  rule  of 
common  humanity  to  a  vessel  necessarily  forced  into  a  port  in  distress. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States, 


REPORT  OF  ROBERT  C.  MORRIS.  115 

[Translatiou.] 

No.  8. 

To  the  honorable  inemnheft's  of  the  Venezxielan- American  Mixed  Commis- 
sion : 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  American  citizen, 
l^eonard  B.  Smith,  and  as  a  result  of  his  study  shows: 

The  present  claim  dates  back  several  years  and  has  been  the  subiect 
of  a  long  correspondence  between  the  two  foreign  offices. 

The  case,  in  brief,  is  as  follows: 

The  steamer  Alliance  arrived  at  the  port  of  Maracaibo  without 
])eing  destined  therefor,  as  was  shown  by  the  ship's  papers  on  board, 
and  the  Venezuelan  authorities,  following  out  strictly  the  provisions 
contained  in  law  XXIV  of  the  Code  of  Hacienda,  detained  it  and 
ordered  an  investigation  to  be  opened  which  the  law  applicable  thereto 
renders  necessary.  In  following  out  the  judicial  process  all  the  for- 
malities prescribed  for  the  procedure  established  in  this  class  of  cases 
were  observed;  and  no  claim,  therefore,  can  be  set  up  because  of  the 
necessary  observance  of  the  local  law. 

As  I  judge  that  the  best  argument  which  could  have  been  presented 
to  sustain  the  rights  of  Venezuela,  in  refuting  the  contentions  set  up 
by  the  claimant,  is  contained  in  the  diplomatic  note  sent  by  the  min- 
ister of  foreign  relations  to  his  excellency  Francis  B.  Loomis,  under 
date  of  April  26, 1898,  contained  in  the  "Yellow  Book"  of  Venezuela, 
published  in  the  year  following,  at  pages  420  to  486,  I  limit  myself  to 
reiterating  all  the  arguments  contained  in  it  and  of  attaching  hereto  a 
copy  thereof. 

Caracas,  June  27,  1903. 

F.  Arroyo  Parejo. 

Note.— -It  is  well  to  observe  that  the  Department  of  State  of  the 
United  States  has  not  up  to  date  answered  the  note  referred  to,  which 
proves  that  it  accepted  the  theory  set  forth  therein. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  proctocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  Leonard  B.  Smith,  owner  of  the  schooner 

Alliance^  J- No.  8. 

V. 

The  Republic  of  Venezuela. 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  answer  submitted  on  behalf  of  the  Republic  of  Venezuela, 
the  most  important  element  in  this  case  has  been  entirely  disregarded, 
namely,  that  the  steamer  Alliance  arrived  at  the  port  of  Maracaibo  in 
distress.  Had  she  arrived  under  normal  conditions  there  might  have 
been  a  reasonable  excuse  for  her  seizure  and  detention,  but  under  the 


11(>  REPORT  OF  ROBERT  C.  MORRIS. 

actual  circumstances  of  her  arrival  there  was  no  just  cause  for  hold- 
ing her,  and  the  Kepu])lic  of  Venezuela  is  liable  on  the  claim  of  her 
owner  as  presented  to  this  tril)unal. 

The  answer  of  Venezuela  states  that  "the  best  argument  which 
could  have  been  presented  to  sustain  the  rights  of  Veiiezuela  in  refut- 
ing the  contentions  set  up  by  the  claimant  is  contained  in  the  diplo- 
matic note  sent  by  the  minister  of  foreign  relations  to  His  Excellency 
Francis  B.  Loomis,  under  date  of  April  2(3,  1808,  contained  in  the 
Yellow  Book  of  Venezucda,  published  in  the  year  following,  at  pages 
480  to  480,"  and  on  this  Venezuela  stands  and  limits  herself  to  the 
argument  contained  therein.  We  beg  to  call  the  attention  of  the 
Connnission  to  the  fact  that  this  communication  has  already  been  put 
in  evidence  by  the  United  States  and  will  be  found  among  the  last 
pages  of  the  proofs  submitted.  In  that  argument  the  statement  is 
made  "The  captain  of  the  port  would  have  been  grossly  derelict  in  his 
dut}^  if,  in  view  of  the  facts  which  caused  the  arrival  of  the  vessel  to 
be  regarded  as  suspicious,  he  had  neglected  to  institute  the  process  or 
detain  the  vessel."  In  another  portion  of  the  argument,  the  statement 
is  made:  "The  steamer  Alliance,  even  though  it  ma}^  have  arrived  in 
distress,  entered  the  territory  where  Venezuelan  legislation  was  in 
force." 

In  the  decision  of  the  national  court  of  finance  of  Maracaibo  the 
court  proceeds  to  announce  its  sentence  upon  the  examination  of  the 
facts,  and  states  that  there  are  three  cases  in  which,  as  established  by 
law,  a  forcible  arrival  is  justified.  The  first  refers  to  damages  on 
board,  the  second  to  sickness  of  the  crew,  whether  contagious  or  not, 
and  the  third  explicitly  concerns  acts  of  God  absolutel}^  preventing 
the  vessel  from  proceeding  on  its  voyage.  And  the  court  proceeds 
to  the  conclusion  that  the  reason  of  the  forcible  arrival  of  the 
steamer  Alliance  falls  within  the  provisions  of  the  law  relative 
to  the  third  case.  Moreover,  in  reviewing  the  testimony  of  Epi- 
tasio  Ivios,  one  of  the  appointed  pilots  of  the  bar  of  Maracaibo, 
who  went  from  San  Carlos  to  assist  the  steamship  Alliance,  strug- 
gling the  whole  night  with  the  surges  of  the  shoals  of  the  bar, 
the  court  quotes  his  testimony  wherein  it  is  shown  that  the  vessel  was 
sighted  with  a  flag  fl3ang  asking  for  assistance,  and  that  such  assist- 
ance was  sent  to  her,  and  it  was  observed  that  the  vessel,  as  well  as  her 
crew,  was  running  a  great  risk,  her  fuel  being  exhausted,  and  that  it 
was  necessary  to  break  the  windows  of  the  cabin,  a  cask,  and  some  cots, 
and  even  to  make  use  of  empty  bags  with  which  to  enable  her  to  get 
up  steam  to  arrive  at  San  Carlos,  where  she  was  supplied  with  fire- 
wood, provisions,  and  water,  of  all  of  which  she  was  absolutel}^  in 
want.  Moreover,  that  the  steamship  was  leaking  in  consequence  of 
having  been  driven  upon  the  shoals  of  the  bar.  The  vessel  was  exon- 
erated by  this  court  and  the  matter  was  then  carried  to  the  high  fed- 
eral court,  which  in  turn  stated  that  her  arrival  had  been  due  to  an 
uncontrollable  force  and  that  nothing  had  been  adduced  to  show  that 
there  was  the  slighest  intention  to  violate  any  of  the  laws  of  the 
Republic. 

We  submit  that  nothing  can  be  clearer  than  that  the  vessel  arrived 
at  the  port  of  Maracaibo  in  distress  and  that  her  seizure  was  absolutely 
unjustifiable.  It  was  perfectly  evident  at  the  time  of  her  detention 
that  the  authorities  of  Venezuela  were  well  aware  of  her  condition,  and 
common  humanity  should  have  caused  them  to  allow  the  vessel  to 


REPOET  OF  ROBERT  C.  MORRIS.  Il7 

undergo  the  necessary  repairs,  to  suffer  her  to  supply  herself  with 
coal  and  other  necessaries,  and  to  permit  her  to  proceed  on  her  voyage 
unmolested.  The  unusual  features  of  this  case  should  call  for  tlie 
allowance  of  punitive  damages  and  the  precedent  of  this  seizure  should 
not  be  established. 

We  submit  that  the  claim  is  both  moderate  and  just  and  that  award 
should  be  made  for  its  full  amount. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  TJyiited  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


The  Alliance,  No.  8. 


The  United  States  of  America  on  behalf 
of  the  legal  representatives  of  Leonard  B. 
Smith,  deceased,  claimants, 

V. 

The  Republic  of  Venezuela.  J 

DECISION  AND  AWARD. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  awards  to  the  claimants  the  sum  of  $2,928.33  in 
United  States  gold. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  the  legal  representatives  of  Leonard  B. 
Smith,  deceased,  claimants, 
v. 
The  Republic  of  Venezuela. 


-The  Alliance,  No.  8. 


Bainbridge,  Commissioner. 

The  steamer  Alliance  was  built  at  Curasao  in  1895  for  Leonard  B. 
Smith,  a  native  citizen  of  the  United  States,  then  domiciled  in  that 
island.  She  was  59  feet  4  inches  in  length,  12  feet  10  inches  in  breadth, 
and  5  feet  in  depth,  with  a  capacity  of  41  tons,  and  cost  the  sum  of 
$12,030.03.  Smith  registered  the  Alliance  as  a  Dutch  ship,  and  she 
carried  the  Dutch  flag  until  February,  1897.  He  then  made  arrange- 
ments to  use  the  ship  in  the  trade  between  Santo  Domingo  and  CupH'ao, 
but  found  that  it  would  be  necessary  to  register  heras  a  Dominican 
ship  in  order  to  be  permitted  to  trade  along  the  Dominican  coast.  The 
memorialist  says: 

To  comply  with  said  laws  still  further  the  papers  were  taken  out  in  the  name  of 
Carlos  A.  Meta,  a  citizen  of  Santo  Domingo,  who,  however,  never  acquired  any  real 
interest  in  the  Alliance,  his  title  being  purely  nominal,  and  tlie  vessel  contiimed  to 
])(i  still  the  property  of  myself  solely. 

The  Dominican  registry,  given  February  20,  1897,  is,  in  part,  as 
follows: 

The  President  of  the  Republic  to  all  to  whom  these  presents  may  come,  greeting: 
The  citizen  Carlos  A.  Mota,  having  proved  that  he  is  the  lawful  owner  of  the  Domini- 
can steamer  Allirmce,  its  captain  l)eing  at  jjrestsnt  tlie  citizen  Martin  Senior,  and  said 
owner  C.  A.  Mota  having  furnished  the  bond  retiuired  by  law;  I,  tlierefore,  grant 
him  this  letter  of  marque,  etc. 


118  REPORT  OF  ROBERT  C.  MORRIS. 

On  Juno  15,  1807,  tho  Alliance  sailed  from  San  Domingo  under  the 
Dominican  Hai!,-  witii  cloaranco  for  Curasao.  On  the  mornino-  of  tho 
20th  she  av;i.s  discovered  on  the  shoals  off  the  bar  at  Maracail)o  Hying  a 
signal  of  distress,  Epitasio  Kios,  one  of  the  pilots  of  the  port,  thus 
describes  lier  condition  at  the  time: 

We  descried  froui  San  Carlos  a  vessel  with  the  flag  hoisted,  asking  for  assistance, 
on  the  shoals  of  the  bar  near  the  place  where  the  bark  Bremen  lies  a  wreck.  I 
immediately  left  to  send  her  the  i)roper  assistance,  reached  where  she  was  at  about 
8  o'clock  in  the  morning,  and  at  once  observed  that  the  vessel,  as  well  as  her  crew, 
was  running  the  greatest  risk.  The  vessel  is  a  small  steamship,  bearing  tlie  name 
Alliance;  she  had  the  Dominican  colors  hoisted;  her  fuel  being  exhausted  it  was 
necessary  to  break  the  windows  of  the  cabin,  one  cask,  and  some  cots,  with  which, 
and  even  empty  bags,  her  engine  could  get  up  40  pounds  of  steam,  which  enabled  us 
to  arrive  at  San  Carlos,  Avhere  the  commander  of  that  fortress  supplied  her  with 
firewood,  provisions,  and  water,  of  all  which  elements  the  vessel  was  absolutely  in 
want,  and  with  which  we  could  come  that  very  day  to  Maracaibo.  The  steamship 
was  at  that  moment  leaking  in  consequence  of  the  blows  she  had  sustained  by 
touching  on  the  shoals  of  the  bar. 

Upon  the  arrival  of  the  Alliance  at  Maracaibo,  she  was  seized  by 
the  collector  of  the  port  on  suspicion  of  unlawful  traffic  in  fraud  of 
the  revenues  of  Venezuela.  Proceedings  were  had  before  the  captain 
of  the  port  and  the  national  court  of  finance  of  Maracaibo,  which  court 
on  August  11:,  1897,  after  a  full  investigation,  decreed  that  the  Alliance 
and  her  cargo  were  freed  from  sequestration  and  to  be  returned  to  the 
owners.  An  appeal  from  this  decree  was  taken  b}^  the  Government 
to  the  high  court  at  Caracas,  which,  on  November  12,  confirmed  the 
decree  of  the  lower  court.  The  high  court  held  that  "an  uncontrolla- 
l)le  force  drove  the  Alliance  into  the  harbor  and  that  nothing  had  been 
adduced  to  show  that  there  was  the  slightest  intention  to  violate  any 
of  the  laws  of  the  Republic  or  defraud  the  revenues."  This  decree  of 
the  high  court  was  published  in  Caracas  on  December  1,  1897.  The 
Alliance  was  restored  to  the  agent  of  Mr.  Smith  on  January  11,  1898. 
In  the  court  proceedings  the  value  of  the  ship  and  cargo  is  stated  to 
be  28,472.10  bolivares,  equivalent  to  $5,475.46  United  States  gold. 

On  April  15,  1898,  a  claim  was  presented  to  the  Government  of 
Venezuela  by  the  United  States,  through  its  legation  at  Caracas,  on 
behalf  of  Leonard  B.  Smith  as  owner  of  the  Alliajice.  The  claim  was 
summarized  as  follows: 

Expenses  incured  by  reason  of  the  seizure  and  detention  of  the  Alliance. .  $3, 439.  32 

Damages  to  the  steamer  resulting  from  detention 2,  000.  00 

Interest  on  investment  at  1  per  cent  per  month  during  detention 800.  00 

Total 6,239.32 

Leonard  B.  Smith  died  intestate  at  Curasao  December  16,  1898, 
leaving  his  surviving  widow,  Clara  M.  Smith,  and  three  sons,  Arthur 
B.  Smith,  Leonard  C.  Smith,  and  Ralph  G.  Smith  as  his  only  heirs  and 
next  of  kin,  in  whose  behalf  the  claim  is  now  presented  to  this  Com- 
mission. In  addition  to  the  original  demand  the  sum  of  $1,007  is 
a.sked  for  accrued  interest. 

Replying  on  April  26,  1898,  to  the  diplomatic  note  of  the  United 
States  legation  presenting  this  claim,  tho  minister  of  foreign  relations 
of  Venezuela  interposed  two  grounds  of  nonliability: 

First.  That  the  Alliance  was  proved  to  be  a  Dominican  ship,  a  nationality  other 
than  that  of  the  claimant. 

Second.  That  the  action  taken  by  the  Venezuelan  authorities  in  the  seizure  and 
detention  of  the  vessel  was  in  line  of  the  strict  performance  of  their  duties  under  the 
law  of  Venezuela  for  the  protection  of  the  revenues,  and  that  no  claim  can  be  sus- 
tained growing  out  of  the  necessary  observance  of  the  local  law. 


EEPORT  OF  ROBERT  C.  MORRIS.  119 

The  honorable  agent  for  Venezuela  refers  the  Commission  to  the 
diplomatic  note  of  the  minister  of  foreign  relations  as  his  own  answer 
to  the  claim. 

The  first  objection  is  rather  suggested  than  urged  b}'  the  Venezuelan 
Government.  Nevertheless,  as  touching  the  jurisdiction  of  the  Com- 
mission over  the  claim,  it  must  be  fully  considered.  The  record  shows 
that  upon  her  arrival  at  Maracaibo  the  Alliance  was  carr3'ing  the 
Dominican  flag;  that  she  had  a  Dominican  registry,  based  upon  a 
showing  that  Carlos  A.  Mota,  -a  citizen  of  San  Domingo,  had  proved 
that  he  was  the  lavrful  owner  of  the  Dominican  steamer  Alliance,  and 
as  such  owner  had  furnished  the  bond  required  by  law;  that  this  reg- 
istr}"  had  been  obtained  with  the  knowledge  and  b}'  the  connivance  of 
Smith  through  his  agent  and  representative  at  San  Domingo,  Jaimo 
Mota. 

But,  whatever  ma}^  have  been  the  morality  of  this  proceeding,  it  is 
not  conclusive  against  the  American  ownership  of  the  vessel. 

The  registry  or  enrollment  or  other  custom-house  document  is  prima  facie  evi- 
dence only  as  to  the  ownership  of  a  ship  in  some  cases,  but  conclusive  in  none.  The 
law  even  concedes  the  possibility  of  the  registry  or  enrollment  existing  in  the  name 
of  one  person  while  the  property  is  really  in  another.  Property  in  a  ship  is  a  mat- 
ter in  pais  to  be  proved  as  fact  by  competent  testimony  like  any  other  fact.  (Whar- 
ton Int.  L.  Dig.,  sec.  410,  citingU.  S.  v.  Pirates,  5  Wheaton,  187;  U.  S.  v.  Amedy, 
11  Wheaton,  409,  and  other  cases. ) 

If  as  a  matter  of  fact  the  Alliance  was  owned  b}"  a  citizen  of  the 
United  States,  she  was  American  property  and  possessed  of  all  the 
general  rights  of  au}"  propert}"  of  an  American.     (Ibid.) 

The  evidence  of  ownership  is  to  the  efl'ect  that  the  Alliance  was 
built  for  L.  B.  Smith  at  Curasao  b}-  Felipe  Santiago  as  shown  by  the 
builders  certificate;  that  the  Dominican  registry  was  secured  in  order 
to  enable  the  vessel  to  trade  along  the  Dominican  coast;  that  Carlos 
A.  Mota  never  acquired  any  real  interest  in  the  ship,  his  title  being 
purely  nominal;  that  the  vessel  actualh'  continued  to  be  the  sole 
propert}"  of  L.  B.  Smith,  and  that  at  the  close  of  the  investigation  by 
the  Venezuelan  court  she  was  returned  to  Mr.  Smith's  possession. 

The  second  objection  interposed  by  the  Government  of  Venezuela 
to  this  claim  is  succinctly  stated  in  the  following  paragraph  of  the 
replv  of  the  minister  of  foreign  relations: 

The  steamer  Alliance  was  detained  by  the  captain  of  the  port  in  accordance  with 
a  provision  of  the  fiscal  code  which  the  authorities  deemed  applicable  to  the  case  in 
view  of  the  manner  in  which  the  ship  arrived.  A  ship  which  enters  the  waters 
where  a  State  has  jurisdiction  can  not,  if  it  is  a  merchant  ship,  be  exempt  from  the 
disposition  and  rules  in  regard  to  territorial  jurisdiction.  Fiore  recognizes  this  in 
his  celebrated  worii,  Nouveeu  Droit  International  Public  No.  815,  and  Calvo  is 
explicit  on  this  point  2so.  451.  F.  de  Martens  in  his  recent  Treatise  on  International 
Law  is  even  more  categoric  when  lie  states  (Vol.  II,  No.  56)  that  the  merchant  ships 
anchored  in  a  port  or  the  waters  of  a  foreign  State  are  subject  to  the  laws  and  local 
authorities.  The  steamer  Alliance,  even  though  it  may  have  arrived  in  distress, 
entered  the  territory  where  Venezuelan  legislation  was  in  force. 

The  minister  argues  that  the  authorities  of  the  port  would  have 
been  grossly  derelict  in  their  duty  if  thej^  had  not  instituted  the 
process  and  detained  the  vessel,  and  that  no  claim  can  be  sustained  for 
losses  growing  out  of  the  necessary  and  proper  observance  of  the  local 
law. 

With  due  respect,  however,  the  vital  question  presented  here  is 
whether  the  Alliance^  although  within  Venezuelan  waters  was,  under 
all  the  circumstances,  subject  to  the  laws  and  local  authorities.     There 


120  RK1H)RT    OF    ROHEKT    C.    MORRIS. 

can  hiudly  1)0  any  doubt  that  the  ship  arrived  at  the  har  of  Maracaibo 
in  ori^at  distress.  Her  condition  at  the  time  is  g-rapliieall}^  described 
in  the  testimony  of  tiie  pilot,  Ei)itasio  Kios,  (pioted  herein.  Further- 
more she  bore  with  her  upon  her  arrival  in  port  the  following  pass 
from  the  commander  of  the  fortress  of  San  Carlos: 

June  21,  1897. 
Allowed  to  go  to  Maracaibo,  having  made  forcible  arrival  on  account  of  lack  of 
coal  and  provisions. 

The  commander  in  chief  of  the  port:  Manukl  Parejo. 

Under  these  conditions  the  exemption  of  the  Alliance  from  terri- 
torial jurisdiction  is  clear.  The  identical  question  here  involved  Avas 
considered  in  the  case  of  the  brig  Enterprize^  decided  by  the  Ameri- 
can and  British  Claims  Commission  of  185.5. 

The  Commissioners,  although  disagreeing  on  other  grounds,  were 
unanimous  upon  the  proposition  that,  as  a  general  rule — 

A  vessel  driven  by  stress  of  weather  into  a  foreign  port  is  not  subject  to  the  appli- 
cation of  the  local  laws,  so  as  to  render  the  vessel  liable  to  penalties  which  would  be 
incurred  by  haying  voluntarily  come  within  the  local  jurisdiction.  The  reason  of 
this  rule  is  obvious.  It  would  be  a  manifest  injustice  to  punish  foreigners  for  a 
breach  of  certain  local  laws  unintentionally  committed  by  them,  and  by  reason  of 
circumstances  over  which  they  had  no  control. 

In  the  case  of  The  Gertrude  (3  Story's  Rep.,  68)  Mr.  Justice  Story 
says: 

It  can  only  be  a  people  who  have  made  but  little  progress  in  civilization  that 
would  not  permit  foreign  vessels  to  seek  safety  in  their  ports  when  driven  there  by 
stress  of  weather,  except  under  the  charge  of  paying  import  duties  on  their  cargoes, 
or  on  penalty  of  confiscation  where  the  cargo  consisted  of  i^rohibited  goods. 

Nor  did  the  laws  of  Venezuela  impose  upon  the  authorities  of  the 
port  any  dut}^  contrary  to  the  principles  of  civilized  jurisprudence  or 
the  dictates  of  humanity  and  hospitality.  Law  XXIV  of  the  Finance 
Code  in  force  at  the  date  of  the  arrival  of  the  Alliance,  and  which  is 
the  same  as  Chapter  XXV  of  the  existing  code,  provides  in  its  first 
article  that — 

the  formalities  prescribed  by  the  law  for  the  entrance  of  vessels  coming  from  a  for- 
eign country  into  the  ports  of  the  Kepublic  shall  not  be  enforced  in  cases  of  forcible 
arrivals  which  are  the  following:  Damages  on  board;  sickness  of  the  crew,  whether 
contagious  or  not,  and  acts  of  (Tod  absolutely  preventing  to  proceed  on  the  voyage. 

Articles  2,  7,  and  8  of  the  same  law  prescribes  the  formalities  that 
must  be  pursued  by  the  administrative  authorities  of  the  port  to  obtain 
the  proofs  of  the  real  causes  of  the  arrival  and  to  assist  the  vessel, 
passengers,  and  cargo  with  all  necessary  means  of  protection  and  secu- 
rity during  the  enforced  stay  of  the  ship  in  port  on  account  of  repairs 
or  other  reasons  in  connection  with  the  forcible  arrival.  Article  16 
orders  that  "once  finished  the  motives  of  the  forcible  arrival,  the 
administrator  of  the  custom-house  shall  deliver  the  license  of  naviga- 
tion and  other  papers  to  the  captain,  giving  him  two  hours  to  sail  out;" 
and  article  17  provides  that  "in  cases  where  the  cause  of  forcible 
arrival  is  not  proved,  any  ship  coming  from  a  foreign  port  and  found 
to  be  anchored,  without  any  justifiable  reasons  in  a  port  for  which  it 
was  not  cleared,  shall  be  liable  to  the  penalties  prescribed  by  Law  XX 
of  said  code." 

Onlv  in  the  cases  cohere  the  cause  of  forcible  arrival  is  not  proved 
and  a  ship  is  found  to  be  anchored  in  a  port  withoiit  any  justifiable 
reasons,  is  it  the  duty  of  the  administrator  of   the  custom-house,  in 


REPORT  OF  ROBERT  C.  MORRIS.  121 

conformity  with  article  IT  above  quoted,  to  pass  all  documents  to  the 
judge  of  linance  in  order  to  initiate  the  corresponding  trial? 

In  view  of  the  evidence  of  the  pilot  Rios,  the  wording  of  the  pass 
given  by  the  commander  of  San  Carlos,  the  disabled  condition  of  the 
vessel,  and  the  testimony  of  the  crew  which  must  have  been  taken  by 
the  captain  of  the  port  as  required  by  law,  can  it  be  said  that  the  cause 
of  the  forcible  arrival  of  the  Alliance  was  not  proved  or  that  she 
was  anchored  in  the  port  of  Maracaibo  without  any  justifiable  reasons'^ 
And  if  not,  there  was  no  probable  cause  under  the  law  of  the  country 
for  the  action  of  the  port  authorities  and  the  subsequent  judicial  pro- 
ceedings. The  liabilit}^  of  the  Government  of  Venezuela  for  the  ascer- 
tainable loss  or  injuries  resulting  from  the  seizure  and  detention  of 
the  Alliance  is  both  upon  reason  and  authority  established. 

The  claim  is  believed  to  be  considerably  exaggerated.  The  board 
of  survey  which  examined  the  steamer  upon  her  arrival  at  Curacao  on 
Januar}^  15,  1898,  estimated  "the  complete  repairs  of  said  boat  at  the 
amount  of  §2,000,  so  as  to  make  her  seaworthy."  But  it  is  to  be 
remembered  that  the  Alliance  arrived  in  port  at  Maracaibo  in  a  battered 
and  disabled  condition.  Large  sums  of  money  are  alleged  to  have 
been  expended  b}^  claimants'  intestate  because  of  the  seizure,  but  no 
vouchers  therefor  are  put  in  evidence,  although  the  claim  was  made 
within  two  months  after  the  return  of  the  ship  to  her  owner. 

An  award  will  be  made  in  this  claim  for  the  sum  of  $2,500  United 
States  gold,  with  interest  at  3  per  cent  per  annum  from  April  15,  1898, 
the  date  of  the  presentation  of  the  claim  to  the  Venezuelan  Govern- 
ment, to  December  31,  1903,  the  anticipated  date  of  the  final  award  by 
this  Commission. 

The   United   States   and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  the 
legal  representatives  of  Leonard  B.  Smith,  deceased,  claimants,  against 
the  Republic  of  Venezuela,  No.  8,  the  sum  of  two  thousand  nine  hun- 
dred twenty-eight  and  33100  dollars  ($2,928.33)  in  United  States  gold 
coin  is  hereby  awarded  in  favor  of  said  claimants,  which  sum  shall  be 
paid  b}^  the  Government  of  Venezuela  to  the  Government  of  the  United 
States  of  America  in  accordance  with  the  provisions  of  the  convention 
under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  pai't  of  Yenezuela. 

Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretamj  on  thep)ttrt  of  the  United  States  of  America. 

Delivered  July  Itt,  1903. 


12'i  REPORT    OF    ROBERT    C.   MORRIS. 

Ih'I'oi-o  Iho  Mixed  Commission  orgauizecl  under  the  protocol  of  Febru 

•dvy  17,  ltH)H,  between  the  United  States  of  America 

and  the  llepublic  of  Venezuela. 

The  United  States  of  America  on  behalf  ~ 
of  A.  T.  Stubbs,  claimant, 

V. 

The  Republic  of  Venezuela. 


KNo.  9. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  A.  T.  Stuljbs 
for  damages  for  a  malicious  destruction  of  propert3\ 

The  facts,  as  stated  in  a  memorial  presented  to  the  Department  of 
State  of  the  United  States  on  December  29,  18Y9,  are  ver}'  brief,  and 
are  to  the  effect  that  a  rabble,  headed  by  some  of  the  port  and  custom- 
house ofhcers,  boarded  the  claimant's  schooner,  the  Jennie  A.  /Stnhhs, 
in  the  port  of  Maracaibo,  overhauled  the  vessel,  and  took  ashore  nearly 
all  the  small  stores  on  board.  Claimant  immediately  reported  the 
matter  to  the  United  States  consul,  who,  together  with  claimant's  mer- 
chants and  the  claimant  himself,  applied  to  the  Venezuelan  authorities 
at  the  port  for  redress,  but  they  refused  either  to  interfere  or  render 
any  satisfaction  in  the  matter. 

There  does  not  appear  to  have  been  au}^  cause  assigned  for  this 
wanton  outrage.  As  its  result  claimant  was  compelled  to  replace  his 
stores  in  a  foreign  port  at  a  greatly  advanced  price. 

The  claim,  originally  made  at  $500,  has  been  reduced  by  the  claim- 
ant, by  a  letter  of  April  28,  1903,  to  the  sum  of  $100,  covering  only 
the  actual  cost  of  the  stores  taken  and  destro3"ed. 

There  can  be,  we  think,  no  question  that  the  Venezuelan  Govern- 
ment is  liable  for  damages  in  this  case.  The  rule  of  international  law 
as  to  liability  of  a  government  under  such  circumstances  is  well  settled 
to  depend  upon  two  primary  conditions:  First,  that  the  wrong  was  done 
under  direct  authority  from  the  government;  second,  upon  the  atten- 
tion of  the  proper  officers  being  called  to  the  matter,  the  government 
took  no  steps  to  prevent  or  punish  the  wrong.  These  principles  are 
found  laid  down  upon  a  full  discussion  of  the  authorities  in  Moore's 
International  Arbitrations,  volume  3,  pages  2952  and  2953  and  3023  and 
3024.  The  reasons  assigned  by  Mr.  Finlay  in  the  case  of  the  Horatio^ 
on  page  302-1,  above,  for  refusing  an  award  because  the  matter  was  not 
called  to  the  attention  of  the  Venezuelan  authorities,  draw  clearly  the 
distinction  upon  which,  under  the  facts  in  this  case,  an  award  should 
be  made.  Here  the  evidence  is  that  the  matter  was  immediately  called 
to  the  attention  of  the  Venezuelan  authorities,  and  they  refused  to  act 
at  a  time  when  the  wrong  could  have  been  prevented  or  at  least  righted 
by  the  restoration  of  property. 

No  exorbitant  claim  is  made;  simply  a  claim  for  the  actual  loss,  and 
an  award  in  this  amount,  with  interest,  should  be  made.  Interest 
should,  we  think,  be  allowed  in  this  case,  because  the  matter  was 
immediately  brought  to  the  attention  of  the  Government  of  the  United 
States  by  the  claimant,  and  there  has  been  since  that  time  no  arbitra- 
tion commission  empowered  to  adjudicate  the  claim  until  the  present. 
The  powers  of  the  commission  appointed  under  the  act  of  1885  were  so 
clearl}^  limited  to  the  reconsideration  of  cases  determined  by  the  former 
Caracas  commission  that  Ave  need  not  discuss  the  question  of  want  of 
power  of  the  commission  which  met  in  1890  to  have  disposed  of  this 


EEPOKT  OF  EGBERT  C.  MOREIS.  123 

claim.     Interest  should  be  allowed  from  the  29th  of  December,  1879, 
which  amounts  to  $170.25. 
Respectfully  submitted. 

Robert  C.  Morris,  Agent  of  the  United  States. 

[Translation.] 

No.  9. 
To  thehonorallememlersoftheYenezuelan- American  Mixed  Commission: 
The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  American  citizen 
A.  T.  Stubbs  for  damages  caused  to  his  property,  and  observes: 

1.  That  the  facts  upon  which  the  claim  is  founded  have  been  estab- 
lished by  no  sort  of  proof,  and  that  in  this  regard  there  only  exists 
the  simple  affirmation  of  the  claimant  made  without  oath. 

2.  That  the  protest  which  the  claimant  alleges  to  have  made  before 
the  United  States  consul  on  the  date  of  the  acts  is  not  produced. 

3.  That  the  name  of  the  port  where  the  claimant  renewed  his  pro- 
visions, and  the  kind  and  quality  of  them,  are  not  mentioned — circum- 
stances which  are  all  necessary  in  order  to  determine  the  reason  for 
the  high  price  which  he  demands  for  them. 

4.  That  the  Department  of  State  of  the  United  States  has  never  pre- 
sented this  claim  to  the  Venezuelan  foreign  office,  which  evidently 
proves  that  it  does  not  consider  it  well  founded. 

5.  That  in  case  it  were  certain  that  the  Venezuelan  authorities  com- 
mitted the  injury,  which  is  denied,  it  is  not  proved  that  they  proceeded 
in  their  public  character— a  requisite  which  international  law  requires 
in  order  to  establish  the  responsibility  of  the  Government. 

As  is  seen,  therefore,  this  claim  is  deficient,  not  only  with  respect  to 
the  proof  of  the  facts,  but  also  in  the  appreciation  of  the  law. 
Caracas,  June  27,  1903. 

F.  Arroyo  Parejo. 

The  United  States  and  Venezuelan    Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 

of  A.  T.  Stubbs,  claimant,  I  No   9 

V. 

The  Republic  of  Venezuela, 
decision. 
The  evidence  presented  in  support  of  this  claim  bein^  insufficient  to 
establish  any  liability  on  the  part  of  the  Government  of  Venezuela  for 
the  loss  complained  of,  the  claim  is  herel)y  disallowed. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Venezuela. 
Attest  to  decision. 

Harry  Barge,  President. 

Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 

Secretary  on  the  parf  <f  the  United  States  of  America. 

Delivered  July  10,  1903. 


124  EEPORT  OF  ROBERT  C.  MORRIS. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  l)etweeii  the  United  States  of  America 
and  the  llepublic  of  Venezuela. 


The  United  States  of  America  on  behalf 

of  J.  S.   Emer}' &  Co. ,  owner  of  the 

schooner  Mark  Gray^  claimants, 

V. 

The  Republic  of  Venezuela. 


No.  10. 


BRIEF  ON  BEHAIiF  OF  THE  UNITED  STATES. 

The  United  States  in  this  case  presents  the  claim  of  J.  S.  Emery  & 
Co.,  owner  of  the  schooner  Mark  Gray^  for  damages  amounting  to 
$1,537. .50  and  interest  to  the  amount  of  1338.25. 

The  facts  of  the  case  upon  which  the  liability  on  the  part  of  the 
Venezuelan  Government  is  predicated  are  briefly  as  follows: 

The  American  schooner  Mark  Gray  arrived  at  the  port  of  Mara- 
caibo  on  December  11,  1895,  with  a  cargo  consigned  to  Andres  Ron- 
cayolo,  under  a  charter  party  by  which  the  charterers  were  to  pay  the 
port  charges,  including  towage. 

The  vessel  was  unloaded  and  read}^  to  depart  to  sea  on  December  30, 
but  was  unable  to  leave  through  inability  to  obtain  a  tug  to  tow  her 
out  to  sea,  the  tugs  at  the  port  having  at  that  time,  as  appears  from 
the  documentary  evidence,  been  taken  by  the  Venezuelan  Government. 
This  state  of  facts  continued,  the  vessel  lying  in  the  harbor  until  the 
17th  of  February,  1896,  when,  at  risk  of  destruction,  she  succeeded  in 
leaving  the  port  by  sailing  over  the  bar,  having  still  been  unable  to 
obtain  the  services  of  a  tug. 

The  liability  of  the  Venezuelan  Government  is  claimed  because  of 
the  fact  that  the  Venezuelan  Government  had  granted  a  monopoly  of 
the  towing  business  at  this  port,  and  that  no  other  vessel  could  be  used 
for  this  purpose  than  the  tugs  of  the  company  having  this  monopoly. 
This  company  was  prevented  from  rendering  the  service  in  this  case 
by  the  fact  that  the  Government  was  at  that  time  using  the  tugs  for 
its  own  purposes.  The  schooner  was,  therefore,  by  force  of  Venezue- 
lan law,  compelled  to  wait  the  pleasure  of  the  Government  in  returning 
the  tugboat.  After  waiting  fifty  days,  as  there  seemed  to  be  no  prob- 
ability that  any  relief  would  be  obtained  from  the  Venezuelan  author- 
ities, the  vessel  put  to  sea  without  the  services  of  a  tug. 

A  proper  protest  was  filed  on  January  27,  calling  this  matter  to  the 
attention  of  the  Venezuelan  Government. 

We  think  there  can  be  no  question  that  the  Venezuelan  Government 
has  made  itself  directly  responsible  for  the  demurrage  and  loss  in  this 
case,  by  granting  the  towage  monopoly  and  then  itself  preventing  the 
towage  company  from  rendering  the  service,  it  directly  caused  the 
injur}^  which  has  resulted.  There  can  be  no  question  that  a  govern- 
ment is  liable  to  foreign  citizens  for  injuries  which  arise  from  the 
direct  act  of  the  government.  As  illustrating  the  principles  upon 
which  this  claim  should  be  decided,  we  refer  the  Commission  to  the 
opinion  of  the  former  Venezuelan  commission  in  the  case  of  the  brig 
Horatio,  reported  page  37  et  seq.  of  the  opinions  of  that  commission. 
The  analogy  of  the  principles  there  announced  clearl}'  sustain  the  right 
of  the  claimant  in  this  case.     The  question  in  that  case  was  a  question 


REPORT  OF  ROBERT  C.  MORRIS.  125 

of  going  to  sea  without  a  pilot,  here  without  a  tugboat.     The  principle 
is  the  same,  the  requirements  of  the  Venezuelan  law  being  similar. 

It  was  held  in  the  case  of  the  brig  Horatio  that  having  attempted  to 
go  to  sea  without  a  pilot,  she  could  not  recover  for  the  consequent  loss 
of  the  vessel,  and  that  not  having  called  the  attention  of  the  Govern- 
ment to  the  refusal  of  the  pilot  to  act,  the  Government  was  pot  respon- 
sible for  not  having  furnished  a  pilot.  The  claimant  in  this  case  took 
exacth^  the  course  which  this  opinion  of  the  former  Venezuelan  com- 
mission indicates  to  be  essential:  The  schooner  was  held  fift}^  days  for 
a  tugboat,  and  the  attention  of  the  Government  was  properly  called  by 
a  protest  to  the  fact  that  no  tugboat  was  furnished.  Under  the  reason- 
ing of  the  former  commission,  it  was  the  duty  of  the  Venezuelan  Gov- 
ernment, as  a  result  of  the  provision  of  this  law  rendering  a  tugboat 
essential,  to  see  that  this  service  was  rendered  when  the  matter  was 
called  to  its  attention,  as  was  done  in  this  case.  The  facts  of  this  case 
showing  that  it  was  because  of  acts  of  the  Government  itself  in  taking 
away  the  tugljoats  that  the  sei'vice  could  not  be  rendered  only  increase 
the  liability  of  the  Venezuelan  Government  for  the  injury. 

We  submit  that  an  award  should  be  made  for  the  amount  claimed, 
with  interest  from  the  time  the  case  was  called  to  the  attention  of  the 
Venezuelan  authorities,  in  January,  1896. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

No.  10. 

The  honorable  members  of  the  Ve7iezuela'n- American  Mixed  Commis- 
sion: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  entered  into  the  study  of  the  claim  presented  by  the 
American  citizens  John  S.  Emery  &  Co. ,  and  as  a  result  of  his  study 
shows: 

The  authority  of  the  Government  of  Venezuela  to  contract  for  the 
sort  of  service  which  is  monopolized  by  the  company  referred  to  by 
the  claimants  is  indisputable.  If  this  company  failed  in  the  duties 
which  it  had  contracted  with  the  public,  responsibility  therefor  can  be 
attached  solely  and  exclusively  to  it,  which  responsibility  can  not, 
even  collaterally,  be  admitted  on  the  part  of  the  Government.  Even 
in  case  that  this  latter  had  deprived  the  said  company  of  the  means  of 
complying  with  the  contractual  obligations,  which  is  not  proven,  the 
resulting  consequences  of  this  act  could  not  operate  except  against  the 
company  itself,  which  as  the  contracting  party  is  the  only  one  capable 
of  exercising  the  rights  derived  from  the  contract. 

The  claimants  ought,  therefore,  to  have  recourse  against  the  com- 
pany and  in  no  way  against  the  Government,  to  whom  they  are  bound 
by  no  judicial  relation. 

Therefore,  the  claim  is  inadmissible  and  judgment  should  be  rendered 
accordingly. 

Caracas,  June  27,  1903. 

F.  Arroyo  Parejo. 


126  REPORT  OF  ROBERT  C.  MORRIS. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Kepublie  of  Venezuela. 

The  United  States  of  America  on  behalf 

of  J.  S.  Emery  &  Co.,  owner  of  the  schooner 

JIa/'k  Omy^  claimants,  |-No.  10. 

V. 

The  Republic  of  Venezuela.      J 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  answer  in  this  case  the  Repulilic  of  Venezuela  assumes  the 
position  that,  while  the  Government  of  Venezuela  had  complete 
authority  to  contract  for  the  kind  of  service  monopolized  by  the  com- 
pany to  which  it  had  granted  the  right  to  operate  a  towboat  at  the  ])ar 
of  ^laracaibo — even  though  by  the  act  of  the  Government  the  com- 
pany was  rendered  incapable  of  afi'ording  itc  usual  service — the  Gov- 
ernment was  not  responsible,  and  that  the  compan}^  alone  should  be 
held  for  any  damages  which  accrued  to  the  claimants  in  this  matter. 

The  United  States  takes  the  ground  that  the  Venezuelan  Govern- 
ment, having  by  its  act  of  interference  taken  possession  of  this 
monopoh',  as  is  clearly  evidenced  by  the  letter  of  A.  Roncayolo,  con- 
tained in  the  protest  of  W.  A.  Sawyer,  master  of  the  schooner  Mark 
Gray^  to  the  United  States  consul  at  Maracaibo,  and  also  by  the  other 
evidence  submitted  by  putting  in  commission,  for  the  Government 
service,  the  single  tugboat  operated  by  the  company,  assumed  the 
duties  of  the  company  and  became  responsible  for  the  damages  to  the 
claimant,  and  that  it  can  not  take  shelter  behind  the  theory  that  the 
claimants  should  look  to  the  company  for  damages. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United   States   and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  J.  S.  Emery  &  Co.,  claimants, 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  b}^  Baittbridge,  Commissioner. 
The  Commission  disallows  the  claim. 

The  United   States  and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  J.  S.  Emery  &  Co. ,  claimants,  !  The  Mark  Gray^ 

^  V.  (  No.  10. 

The  Republic  of  Venezuela.  1 

Bainbridge,  Commissioner. 

The  United  States  presents  the  claim  of  J.  S.  Emery  &  Co. ,  manag- 
ing owners  of  the  American  schooner  Mark  Gray.,  against  the  Repub- 
lic of  Venezuela  in  the  sum  of  $1,537.50.  and  interest  amounting  to 

$338.25. 


The  Mark  Gray., 
No.  10. 


REPORT  OF  ROBERT  C.  MORRIS.  127 

The  Marl'  Gray,  W.  A.  Sawyer,  master,  was  chartered  on  October 
15,  1895,  by  Messrs.  Kunhardt  &  Co.  to  carry  a  cargo  of  railroad 
material  from  New  York  to  Maracaibo,  Venezuela.  The  charterers 
agreed  to  pay  all  vessels'  port  charges  at  Maracaibo,  including  pilot- 
age, lighterage,  consul  fees,  interpreters'  fees,  etc.,  and  towage  over 
the  bar,  and  demurrage,  beyond  the  lay  days  for  loading  and  discharg- 
ing cargo,  at  the  rate  of  $30  per  da}^  for  ever}"  day's  detention  by 
default  of  the  charterers. 

The  schooner  arrived  at  Mamcaibo  on  December  11,  1895,  finished 
discharging  her  cargo  on  the  28th.  and  could  have  left  port  two  days 
later  had  she  been  able  to  obtain  towage;  but  in  the  absence  of  an}^  tow- 
boat  in  the  port  the  vessel  was  delayed  at  Maracaibo  until  Februar}"  17, 
1896,  when  she  finally  got  to  sea  by  resorting  to  the  unusual  custom  of 
sailing  over  the  bar.  When  Captain  Sawyer,  after  discharging  cargo, 
inquired  of  the  consignees  and  the  towing  agents  for  a  tug,  he  was 
informed  that  the  towboat  Avas  away  in  the  service  of  the  Government, 
and  that  no  definite  information  could  be  given  as  to  when  she  would 
return. 

On  January  18,  1896,  the  captain  wrote  to  Mr.  A.  Roncayolo,  the 
charterers'  agent  at  Maracaibo,  as  follows: 

Sir:  I  beg  to  call  your  attention  to  the  fact  that  for  several  days  past  the  schooner 
Mark  Gray,  under  my  command,  has  been  ready  for  sea,  but  has  been  unable  to  leave 
for  lack  of  towage.  I  must  appeal  to  you  as  consignee  of  said  vessel  in  this  port  and 
as  agent  of  the  charterers,  Messrs.  Kunhardt  &  Co.,  of  New  York,  to  furnish  me  with 
towage  as  provided  for  in  my  charter  party.  The  agreement  respecting  towage  in 
the  charter  party  is  as  binding  as  that  providing  for  the  payment  of  freight  or  any 
other  consideration  specified  in  that  document,  and  the  charterers  of  the  vessel  are 
not  to  be  considered  as  having  complied  with  their  obligations  until  said  vessel  shall 
have  been  towed  over  the  bar.  I  beg  to  call  your  attention,  as  charterers'  agent,  to 
these  facts,  protesting  at  the  same  time  against  the  injury  to  the  vessel's  interests 
caused  by  this  delay. 

(Signed)  W.  A.  Sawyer, 

Master,  American  Schooner  Mark  Gray. 

On  January  27,  1896,  Captain  Sawyer  made  formal  protest,  before 
the  United  States  consul  at  Maracaibo,  "against  the  charterers, 
Messrs.  Kunhardt  &  Co.,  of  New  York,  against  the  contractor  for 
towage  at  Maracaibo,  against  the  Government  of  Venezuela,  and  against 
all  and  ever}-  person  and  persons  whom  it  may  or  doth  concern,  and 
against  all  and  ever}"  accident,  matter,  and  thing,  had  and  met  with  as 
aforesa  d,  whereby  and  by  reason  whereof  the  said  schooner,  or  her 
interest  s,  shall  appear  to  have  sufiered  or  sustained  damage  or  injury." 

It  ap  pears  from  the  record  that  the  Venezuelan  Government  had 
granted  a  monopoly  of  the  business  of  towing  vessels  across  the  bar  at 
Maracaibo,  and  that  the  grantee  of  the  privilege  used  in  that  business 
l)ut  one  tugboat,  which,  at  the  time  its  services  were  required  by  the 
Mark  Gray^  was  employed  in  the  service  of  the  Government  itself. 

The  learned  counsel  for  the  United  States  urges  on  behalf  of  the 
claimants  that  the  Venezuelan  Government  has  made  itself  directly 
responsible  for  the  demurrage  and  loss  in  this  case,  by  granting  the 
towage  monopoly  and  then  preventing  the  towage  company  from 
rendering  the  service  by  taking  for  the  Government's  own  use  the 
single  tugboat  operated  by  the  company. 

But  the  right  of  the  Government  of  Venezuela  to  grant  the  franchi.se 
in  question,  by  virtue  of  its  proprietary  interest  in  and  exclusive  juris- 
diction over  its  territorial  waters,  is  indisputable.  And  it  is  difficult 
to  pei'ceive  wherein  the  Government,  by  making  the  grant,  assumed 
any  liability  for  the  acts  or  omissions  of  the  grantee.     If  such  liability 


128  REPORT  OF  ROBEKT  0.  MORRIS. 

arises  from  the  tonus  of  the  g-rant,  that  fact  does  not  appear  in  evidence 
before  the  Conunissioii.  The  protest  of  Captain  Saw^yer  states  "that 
according-  to  tlie  agreeinent  made  by  the  contractor  for  towage  witli 
the  Go\ernment  of  Venezuela,  tlie  said  contractor  is  bound  to  keep 
tugs  constantl}'  ready  for  service  at  the  Maracaibo  bar."  A  showing 
that  the  contractor  did  not  keep  tugs  constantly  at  the  bar  is  rather 
proof  of  his  failure  to  observe  liis  agreement  with  the  Government, 
than  of  the  Government's  liability  to  those  who  may  have  sufi'ered 
from  such  failuiv,  which  is  the  claim  made  here. 

Kor  does  the  fact  that  the  Government  was  em.ploying  in  its  service 
the  only  tugboat  used  })y  the  contractor  for  towage  fix  a  liability  upon 
Venezuela  for  losses  sustained  by  those  who  were  unable,  because  of 
its  employment  by  the  Government,  to  secure  the  service  of  the  tug. 
That  circumstance  may  indeed  have  occasioned  a  loss  to  the  claimants; 
but,  if  so,  it  was  not  injuriously  brought  about  b}^  any  violation  of 
their  legal  rights  and  is  damnum  absque  injuria. 

The  claim  must  be  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting'  at 
Caracas,  Venezuela. 

DECISION. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  J.  S. 
Emer}^  &  Co. ,  owners  of  the  schooner  Ifark  Gray,  claimants,  against 
the  Republic  of  Venezuela,  No.  10,  the  evidence  presented  in  support 
of  said  claim  being  insufficient  to  establish  any  liability  on  the  part  of 
the  Government  of  Venezuela  for  the  loss  or  injury  complained  of,  the 
claim  is  hereby  disallowed. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Yenezuela. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 
Delivered  July  17,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America,  on  behalf] 
of  the  American  and  Electric  Manufacturing  | 
Company,  claimant,  j^No.  11. 

V. 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  the  American 
and  Electric  Manufacturing  Company,  a  corporation  of  the  United 


EEPORT  OF  ROBERT  C.  MORRIS.  129 

States,  organized  under  the  laws  of  the  State  of  Virginia,  and  having 
its  principal  place  of  business  at  Washington,  D.  C,  for  damages  for 
injuries  to  its  telephone  plant  in  the  city  of  Bolivar,  in  the  Republic 
of  Venezuela. 

The  facts  as  they  appear  from  the  memorial  and  accompanying  affi- 
davits show  three  separate  sources  of  injury  to  this  compan}':  First, 
during  the  revolution  in  May,  1901,  the  city  of  Bolivar  was  besieged 
])y  the  revolutionists.  Previous  to  the  attack  the  military  authorities 
of  the  present  Government  took  possession  of  the  telephone  plant, 
allowing  the  use  of  its  wires  only  for  military  purposes,  causing  many 
of  the  subscribers  to  cancel  their  subscriptions  and  withdraw  their 
support  to  the  business  of  the  company. 

Second.  During  the  battle  which  took  place  in  May,  1901,  and  which 
resulted  in  the  capture  of  the  city  of  Bolivar  by  the  revolutionists,  a 
large  number  of  the  wires  and  poles  and  other  property  belongingto 
the  company  were  destroyed  by  the  revolutionists.  For  the  injuries 
occasioned  bv  these  two  causes,  the  claimants  make  a  claim  for  §4,000. 

Third.  Subsequently  the  property  and  plant  of  the  claimant  was 
again  damaged  and  injured  to  the  extent  of  ^2,000  during  the  bombard- 
ment of  the  citv  of  Bolivar  by  the  ships  of  the  Government  navy,  in 
August,  1902. 

The  affidavits  submitted  with  the  memorial  sufficiently  support  the 
claim  as  to  the  fact  of  the  injury  and  resultant  damage  on  its  account. 
The  question  presented  by  this  case  is  one  of  the  liability  of  the 
Venezuelan  Government  for  the  damage  which  has  resulted,  or  a  part 
thereof. 

As  to  the  injuries  classed  under  the  first  and  second  heads  above, 
there  can  be  under  the  decisions  of  arbitration  commissions  in  similar 
cases,  and  the  well-established  principles  of  international  law  applica- 
ble thereto,  no  doubt  as  to  the  liability  of  the  Government  of  Vene- 
zuela for  the  $4,000  damages  claimed  in  this  respect.  This  telephone 
plant  was  taken  possession  of  by  the  present  Government  of  Venezuela 
for  military  use.  ^^■hile  in  such  possession  of  the  Government,  it  was 
injured  and  partially  destroyed  by  the  insurgent  forces.  A  govern- 
ment is  liable  for  property  of  which  it  takes  possession  for  military 
purposes,  and  for  the  injury  or  destruction  of  property  while  in  its 
possession.  This  principle  fs  clearly  established.  See  the  cases  col- 
lated in  the  fourth  volume  of  :\Ioore's  International  Arbitrations,  page 
3714  et  seq.,  and  especially  the  case  of  Putegnafs  heirs,  at  pages  3718 
to  3720,  in  which  an  award  was  made  for  claimants  for  property  which 
had  been  taken  possession  of  by  the  Government  forces,  and,  subse- 
quentlv,  while  in  its  possession ,*^destroyed  by  the  forces  of  the  enemy. 

There  can  be  no  question  but  that  the  claimants  are  entitled  to  an 
award  for  the  §4,000  damage  claimed  for  injuries  to  property  while 
in  the  possession  of  the  Government  in  May,  1902. 

As  to  the  claim  for  injuries  arising  from  the  shelling  of  the  city  of 
Bolivar  by  the  naval  forces  of  the  (iovernmcnt  in  August,  1902,  such 
injuries  were  probably  necessarily  incident  to  the  state  of  warfare 
existing  at  that  time.  "^Intcrest  should  be  allowed  at  the  legal  rate  of 
3  per  cent  from  May  2G,  1902,  to  June  1,  1903. 

KespoctfuUv  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 
S.  Doc.  .317,  .58-2 9 


180  REPORT  OF  ROBERT  C.  MORRIS. 

[Translation.] 

No.  11. 

ANSWER. 

To  the  honorahle  tnemhers  of  the  Yenezuel an- American  Mixed  Commis- 

i<)on : 

The  iindert-iignod,  agent  of  the  United  States  of  Venezuela,  has  read 
the  proofs  of  the  claim  which  the  American  and  Electric  Mannfae- 
turing  Company,  a  corporation  organized  according  to  the  laws  of  the 
State  of  Virginia,  and  which  has  in  Washington  its  principal  place  of 
business  and  interest,  has  presented  to  this  honorable  Commission. 

This  claim  arises  out  of  damages  and  injuries  caused  the  telephone 
plant  which  the  said  company  owns  in  the  city  of  Bolivar: 

1.  By  an  order  of  the  Government  of  the  State  prohibiting  for  some 
time  telephonic  communication  among  the  subscribers. 

2.  Because  of  destruction  suffered  during  the  bombardment  of  said 
city  by  the  navy  of  the  Government  in  August,  1902. 

With  respect  to  the  first  point  it  is  necessary  to  consider  that  at  the 
date  of  the  occurrences  the  country  was  in  a  state  of  civil  war,  and 
that  the  course  ordered  by  the  Government  of  the  State,  necessitated 
by  the  circumstances  of  the  moment  and  in  exercise  of  the  public 
authorit}'  with  which  it  was  invested,  was  justified  b}-  the  law  of 
nations.     (See  Fiore,  Public  International  Law,  vol.  1,  p.  583.) 

Upon  this  point  it  is  necessary  to  remember  that,  as  is  shown  by 
the  confession  itself  of  the  claimants,  the  measure  adopted  by  the 
officials  did  not  last  more  than  two  days — a  time  which  could  not 
suffice  to  cause  the  damage  they  pretend  to  have  suffered. 

With  respect  to  the  second  point  it  is  necessarj^  to  take  into  consid- 
eration that  the  city  of  Bolivar  was  in  the  power  of  militar}"  forces 
who  had  betrayed  their  trust  and  rebelled  against  the  legitimately 
constituted  Government.  The  latter,  therefore,  was  obliged  to  sup- 
press the  disorder  and  preserve  the  interests  of  the  State.  In  similar 
cases  it  is  a  principle  of  international  law — 

that  the  responsibility  of  governments  for  damages  suffered  \>\  foreigners  can  not  lie 
more  extensive  than  that  which  would  accrue  to  foreign  governments  with  respect 
to  their  own  nationals,  because  the  duties  of  hospitality  are  not  sufficiently  impera- 
tive to  limit  the  full  exercise  of  sovereignty,  and  that  it  can  not  be  admitted  that  a 
sovereign  who  finds  himself  obliged  to  retake  a  cit}'  occupied  by  resisting  rebels  is 
obliged  to  indemnify  foreigners  who  may  have  suffered  in  their  interests  by  the 
attack  made  upon  the  city.  The  foreigner  who  establishes  himself  in  a  country 
accepts  in  advance  and  voluntarily  the  eventual  dangers  to  which  said  country  may 
be  exposed,  and  thus,  as  he  participates  in  the  advantages  of  the  nationals  themselves, 
so  also  he  should  resign  himself  to  participate  in  their  misfortunes.  Foreign  and 
civil  war  clearly  come  within  the  category  of  these  eventualities.  (See  the  note  of 
Count  Neselrode  to  Baron  de  Briinon,  diplomatic  agent  of  Russia  at  London,  of  May 
2,  1850. ) 

In  conformity  with  the  doctrine  set  forth,  the  claim  is  inadmissible 
and  ought  therefore  to  be  declared  as  imfounded. 
Caracas,  29  June,  1903. 

(Signed)  F.  Arroyo  Parejo. 


n. 


EEPOET  OF  EGBERT  C.  MORRIS.  131 

The  United  States  and  ^^enezuelau    Claims    Commission*,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  ox  behaef 
of  The  American  Electric  and  Manufacturing 
Company,  claimant.  ^Xo.  11. 

v. 
The  Republic  of  Venezuela. 


DECISION   AND   AWARD. 

Opinion  by  Doctor  Paul.  Commissioner. 

The  Commission  awards  to  the  claimant  the  sum  of  $2,000  United 
States  gold. 

The   United   States   and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  ^'enezuela. 

The  United  States  of  America  ox  behalf] 
of  The  American  Electric  and  Manufacturing  j 
Company,  claimant.  |-Xo.  11. 

The  Republic  of  Venezuela. 

Doctor  Paul.  Commissioner: 

The  claim  of  the  "'American  Electric  and  Manufacturing  Company" 
against  the  Venezuelan  Government  is  based  on  two  distinct  groups 
of  facts.  The  first  is  the  taking  possession  of  by  the  Government  of 
the  State  of  Bolivar,  on  May  26. 1901.  of  the  telephone  office  and  serv- 
ice of  the  line  for  the  use  and  convenience  of  the  military  operations 
during  the  battle,  which  took  place  in  Ciudad  Bolivar,  uiitil  the  29th 
of  said  month,  against  revolutionary  troops,  and  the  damages  which 
the  property  so  occupied  suti'ered  in  consequence  thereof,  owing  to 
acts  of  destruction  performed  by  the  revolutionists.  The  amount 
claimed  for  such  damages  is  the  sum  of  ^,000. 

The  second  group  of  facts  consists  in  the  damages  suffered  by  the 
telephonic  line  in  August,  1902,  during  the  bombardment  of  Ciudad 
Bolivar,  by  the  vessels  of  the  Venezuelan  Government:  the  claim  on 
this  account  being  for  >^2,(i00. 

By  the  documentary  evidence  presented  it  is  proven  that  when  the 
loyal  troops  of  the  Government  were  lighting  the  rebels  of  Ciudad 
Bolivar  General  Julio  Sarris,  constitutional  President  of  the  State 
ordered  the  absolute  interruption  of  all  the  telephonic  service  with 
the  exception  of  the  instruments  which  connected  the  house  of  said 
general  with  the  military  commander,  the  administrator  of  the  custom- 
house, the  marine  customs  office,  the  police  inspector's  oflice.  the 
telegraph  office,  and  such  other  places  stated  in  the  note  which  he 
sent  to  ^Ir.  Eugenio  Barletta.  manager  of  the  company,  dated  ]\Iay 
2(),  1901,  and  ordered  also  the  occupation  of  the  central  office  of  the 
company,  and  stationed  near  the  machinery  an  arnied  guard,  which 
remained  there  until  the  town  was  evacuated  b}-  the  Government's 
troops. 


182  REPORT  OK  KOHKRT  C.  MORRIS. 

It  is  tilso  proven  that  the  revoliitionaiy  forces  destroyed  the  posts 
and  wires  of  the  lines  and  caused  damages  in  the  central  office,  destroy- 
ino-  the  switch  boards  and  forcing  the  employees  to  abandon  the  otlice. 

The  general  principles  of  international  law  which  establish  the 
nonresponsibility  of  the  Govermnent  for  damages  suffered  by  neutrals' 
property,  owing  to  imperious  necessities  of  ndlitary  operations  within 
the  radius  of  said  operations  or  as  a  consequence  of  the  damages  of  a 
battle  incidentally  caused  by  the  means  of  destruction  employed  in 
the  war,  which  are  not  disapproved  by  the  law  of  nations,  are  well 
known. 

Nevertheless  the  said  principles  likewise  have  their  limitations 
according  to  circumstances  established  by  international  law  as  a 
source  of  responsibilit}-,  when  the  destruction  of  the  neutral  property 
is  due  to  the  previous  and  deliberate  occupation  by  the  Government 
for  public  benefit  or  as  being  essential  for  the  success  of  military  opera- 
tions. Then  the  neutral  property  has  been  destroj^ed  or  damaged  by 
the  enemy  because  it  was  occupied  by  the  Government  troops,  and  for 
that  reason  only. 

It  is  the  seizure  of  private  property  for  the  public  use  and  the  loss  or  destruction 
while  so  employed,  whether  by  the  enemy  or  the  Government,  that  entitles  the 
owner  to  payment,  even  if  it  be  morally  certain  that  the  enemy  would  himself  take 
the  property  and  u^e  it,  depriving  the  owner  of  it  forever;  still  its  destruction  by  the 
Government  entitles  the  party  to  compensation.  We  must  hold,  even  in  such  case, 
that  the  public  has  received  the  value  of  the  property  by  embarrassing  its  enemy 
through  such  destruction,  and  is  therefore  bound  to  make  just  compensation.  It 
would  in  no  case  be  just  that  the  loss  should  fall  exclusively  on  one  man  where  the 
property  has  been  lawfully  used  or  destroyed  for  the  benefit  of  all.  (Putegnet's 
Heirs  v.  Mexico,  4  Moore  Int.  Arb.,  3718.) 

The  seizure  of  the  office  and  telephonic  apparatus  hj  the  Govern- 
ment of  Ciudad  Bolivar,  required  as  an  element  for  the  successful 
operations  against  the  enem}",  and  the  damages  suffered  and  done  b}^  the 
revolutionists  as  a  consequence  of  such  seizure  gives  to  the  American 
Electric  and  Manufacturing  Company  the  right  to  a  just  compensation 
for  the  damages  suffered  on  account  of  the  Government's  action. 

The  claimant  company,  exhibiting  evidence  of  witnesses,  pretends 
that  the  damages  caused  amount  to  the  sum  of  $4,000,  but  it  must  be 
taken  into  consideration  that  the  witnesses  and  the  company  itself 
refer  to  all  the  damages  suffered  by  the  telephonic  enterprise  from  the 
commencement  of  the  battle  which  began  on  the  23d  of  jNIa}',  while 
the  seizure  of  the  telephonic  line  b}^  the  Government,  which  is  the 
motive  justif3dng  the  recognition  of  the  damages,  onl}^  took  place  on 
the  26th,  which  reduces  in  a  notable  manner  the  amount  for  damages 
which  has  to  be  compensated  by  the  Government,  and  therefore  the 
damage  is  held  to  be  estimated  in  the  sum  of  $2,000. 

With  reference  to  the  second  section  of  the  claim,  for  the  sum  of 
$2,000  for  damages  suffered  by  the  telephonic  compan}"  during  the 
bombardment  of  Ciudad  Bolivar  in  August,  1902,  this  being  the  inci- 
dental and  necessarj^  consequences  of  a  legitimate  act  of  war  on  the 
part  of  the  Government's  men-of-war,  it  is  therefore  disallowed. 

No  interest  is  allowed,  for  the  reason  that  the  claim  was  never  offi- 
cially presented  to  the  Venezuelan  Government. 

In  consequence  thereof  an  award  is  made  in  favor  of  the  American 
Electric  and  iSlanufacturing  Compan}^,  for  its  claim  against  the  Vene- 
zuelan Government,  in  the  sum  of  $2,000  American  gold. 


EEPORT  OF  ROBERT  C.  MORRIS.  133 

The    United   States  and  Venezuelan  Claims   Commission,   sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America,  on  behalf  of  the 
American  Electric  and  Manufacturing  Company,  claunant,  against  the 
Republic  of  Venezuela,  No.  11,  the  sum  of  two  thousand  dollars 
($2,000)  in  United  States  gold  coin  is  hereb}^  awarded  in  favor  of  said 
claimant,  which  sum  shall  be  paid  by  the  Government  of  Venezuela 
to  the  (xovernment  of  the  United  States  of  America  in  accordance 
with  the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissionet'  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissionei'  on  the  part  of  Yenezuela. 

Attest  to  award: 

Harry  Barge,  President. 

Attest: 

J.  Padr6n  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  July  21,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  ox  behalf 
of  Isaac  J.  Lasiy,  a  naturalized  citizen  of  the 
United  States, 

^'. 
The  Repl^blic  of  Venezuela. 


No.  12. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  Unit(>d  States  presents  in  this  case  the  claim  of  Isaac  J.  Lasry 
for  damages  in  tlio  sum  of  $15,880, 

The  facts  of  the  case,  as  appears  from  the  memorials  and  affidavits 
of  Mr.  Lasry,  and  from  tlie  sworn  alliduvits  of  various  witnesses  to 
the  transactions,  are  that  the  property  of  Mr.  Lasry,  his  phuitation 
and  store  at  the  city  of  Belen,  were  destroyed  by  the  troops  of  the 
present  Government  while  passing  through  the  city  and  under  the  com- 
mand of  their  oflic(u-s,  and  that  their  officers  and  commanders,  although 
necessarily  having  the  means  of  pnn'enting  the  outrage,  made  no 
efforts  whatever  to  prevent  it.  This  injury  was  not  occasioned 
through  the  conduct  of  any  military  operations  and  can  in  no  sens<>  bo 
said  to  be  a  necessary  or  inevitable  hazard  of  war,  but  it  was  a  wanton 
injury  conmiitted  without  necessity  by  the  troops  of  the  Gcncrnment, 


134  REPORT  OF  ROBERT  C.  MORRIS. 

oither  under  the  direction  or  l)v  iho  jxM-niission  of  their  officers,  at 
least  without  any  attonipt  on  the  ])ai't  of  the  connnaiulino-  officers  to 
prevent  it,  and  under  circumstances  where  their  authority  and  acqui- 
escence nuist  he  presumed,  or  where  at  least  they  did  nothing-  to 
prevent  it,  witli  full  opportunity  to  lune  done  so. 

The  evidence  shows  the  value  of  the  cattle,  merchandise,  and  horses 
destroyed  and  cash  taken  to  be  $15,880.  The  facts  are  fully  borne  out 
by  the  accompanyino-  affidavits. 

There  can  be  no  question  as  to  the  liability  of  the  Government  of 
Venezuela  in  such  a  case.  (See  the  decision  of  the  Chilean  Claims 
Conmiission  under  the  treaty  of  August  7,  1892,  at  pages  3711-3712, 
of  the  fourth  volume  of  Moore's  International  Aribitrations,  and  the 
authorities  there  cited.) 

The  principle  there  laid  down  is: 

Neutral  property  destroyed  or  taken  by  soldiers  of  a  belligerent  with  authorization 
or  in  presence  of  their  officers  or  commanders,  gives  a  right  to  compensation  when- 
ever the  fact  can  be  proved  that  said  officers  or  commanders  had  the  means  of 
preventing  the  outrage  and  did  not  make  the  necessary  efforts  to  prevent  it. 

There  can  be  no  doubt  that  under  the  application  of  this  principle 
to  the  facts  of  this  case  the  Government  of  Venezuela  is  liable  for  the 
injur}^  done. 

An  award  should  be  made  in  favor  of  the  claimant  for  the  full 
amount  claimed. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

No.  12. 
ANSWER. 

To  the  honoi'dhle  Tnerribers  of  the  Venezuelan- American  Mixed  Com- 
mission : 
The  undersigned,  agent  of  the  Government  of  the  United  States 

of  Venezuela,  has  considered  the  claim  presented  by  the  American 

citizen,   Isaac  J.   Lasry,  and  respectfully  calls  the  attention  of  the 

Commission  to  the  following: 

The  present  claim  arises  out  of  damages  sustained  in  the  properties 

of  the  claimant,  situated  in  a  little  town  or  village  of  the  State  of 

Carabobo,  of  about  500  souls.     The  mere  consideration  of  the  place 

suffices  to  prove  the  exaggeration  of  the  claim. 

The  facts  upon  which  it  is  founded  are  not  proved,  as  the  common 

law  requires,  since  the  witnesses  have  limited  themselves  to  signing  a 

joint  declaration,  not  under  oath,  and  before  an  official  who  had  no 

authorization  to  receive  it. 

The  rules  of  international  law  generall}^  admitted  by  all  publicists 

for  establishing  the  responsibility  of  governments  in  similar  cases  are 

the  following: 

1.  That  the  acts  which  cause  the  injury  to  foreign  citizens  have 

been  committed  b}'^  the  regular  forces  of  the  respective  governments, 

when  the  personal  responsibility  of  the  officers  of  said  forces  is  not 

enforcible. 


REPORT  OF  ROBERT  C.  MORRIS.  135 

2.  That  such  acts  were  not  the  immediate  and  necessary  consequence 
of  operations  of  war. 

The  proof  offered  does  not  establish  in  any  way  the  culpability  of 
the  officials  of  the  Government,  nor  the  extent  of  the  injuries  suffered. 
The  claim,  therefore,  is  inadmissible,  and  ought  to  be  so  declared. 

Caracas,  June  29,  1903. 

(Signed)  F.  Arroyo  Parejo. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at  Car- 
acas, Venezuela. 


United  States  of  America  on  behalf 
of  Isaac  J.  Lasry,  claimant, 

V. 

The  R.EPUBLIC  of  Venezuela. 


No.  12. 


DECISION  AND  AWARD. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  awards  to  the  claimant  the  sum  of  $2,000  United 
States  gold. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  Isaac  J.  Lasry,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  12. 


Bainbridge,  Commissioner. 

This  claim  is  submmitted  upon  the  following  documents: 
First.  Two  letters  of  claimant,  both  dated  May  16,  1901,  addressed 
to  the  Department  of  State,  in  which-  he  sets  forth  that  he  is  a  natu- 
ralized citizen  of  the  United  States  domiciled  in  Venezuela;  that  on 
November  11,  1899,  the  troops  of  General  Colmenares,  a  detachment 
of  General  Castro's  arm}^  entered  Belen,  where  claimant  resided  and 
was  engaged  in  business  as  a  merchant  and  farmer,  took  away  his  cattle 
and  horses  and  looted  the  better  part  of  the  goods  and  provisions  in  his 
business  establishment,  and  he  summarizes  his  alleged  losses  as  follows: 

29  head  of  cattle,  at  |20  gold  per  head $580 

Merchandise 15, 000 

2  saddle  horsei-?,  at  $125  gold  each 250 

Cash 50 


Total  gold 15,  880 

Second.  A  statement  signed  by  various  parties  claiming  to  be  resi- 
dents of  Belen  before  the  jefe  civil  of  the  parish  to  the  effect  that  on 
the  11th  day  of  November,  1899,  the  cattle  Mr.  Lasry  had  in  his  pasture 
were  taken  by  the  forces  of  (Jcneral  Colmenares,  and  that  the  better 
])artof  the  goods  stored  in  his  establishment  was  looted  by  said  forces; 
and,  furthermore,  that  Mr.  Lasry  had  always  attended  to  his  business 
without  mixing  himself  in  tin;  politics  of  tlie  country,  oi*  in  an3'thing 
else  which  could  affect  his  condition  as  a  neutral  tradesman. 


130  REPORT  OF  ROBERT  C.  MORRIS. 

Third.  A  .statoinent  sij^ncd  on  October  8,  1901,  by  J.  Benody  and 
fl.  A.  Parnioiite,  in  the  presence  pf  the  secretary  of  the  United  States 
lej^xtion  at  Caracas,  to  the  effect  that  Isaac  J.  Lasry  was,  durin<y  the 
revohition  existing*'  in  Veneznehi  in  November,  1899,  practically  ruined 
by  the  sackago  of  his  iiiercantilo  house  established  at  Belen,  a  village  in 
the  State  of  Carabobo,  and  the  confiscation  of  all  his  material  goods, 
such  as  money,  beasts,  and  cattle,  by  the  forces  of  the  Government  of 
Venezuela. 

Fourth.  Copy  of  certificate  of  naturalization  of  Isaac  J.  Lasry  in  the 
court  of  common  pleas  for  the  city  and  county  of  New  York  on  October 
26,  1893,  and  copy  of  passport  issiied  to  Isaac  J.  Lasry  on  March  22, 
1898,  by  the  United  States  legation  at  Caracas. 


It  is  to  be  observed  that  no  legally  competent  evidence  under  the 
rules  of  municipal  law  is  here  presented,  either  as  to  the  fact  or 
amount  of  the  alleged  loss.  The  learned  counsel  for  Venezuela  urges 
that  the  facts  upon  which  the  claim  is  founded  are  not  proved  as  the 
common  law  requires,  and  that  it  should  therefore  be  disallowed. 

Article  II  of  the  protocol  constituting  this  Commission  provides: 

The  Commissioners,  or  umpire,  as  the  case  may  be,  shall  investigate  and  decide 
said  claims  upon  such  evidence  or  information  only  as  shall  be  furnished  by  or  on 
behalf  of  the  respective  governments. 

The  Commission,  then,  is  not  limited  in  the  adjudication  of  the 
claims  submitted  to  it  to  only  such  evidence  as  may  be  competent 
under  the  technical  rules  of  the  common  law,  but  may  also  investigate 
and  decide  claims  upon  information  furnished  by  or  on  behalf  of  the 
respective  governments.  It  has  indeed  been  found  impossible  in  pro- 
ceedings of  this  character  to  adhere  to  strict  judicial  rules  of  evidence. 
Legal  testimony  presented  under  the  sanction  of  an  oath  administered 
by  competent  authority  will  undoubtedly  be  accorded  greater  weight 
than  unsworn  statements  contained  in  letters,  informal  declarations, 
etc.,  but  the  latter  are  under  the  protocol  entitled  to  admission  and 
such  consideration  as  they  may  seem  to  deserve. 

The  information  furnished  as  to  this  particular  claim  is  both  meager 
and  unsatisfactory.  The  statement  of  the  claimant,  that  he  suffered 
some  loss,  and  the  manner  thereof,  is  corroborated  by  the  declarations 
of  various  residents  of  Belen;  but  none  of  the  latter  give  an  estimate 
of  the  amount  of  the  loss  sustained  by  Mr.  Lasry.  Belen  is  referred 
to  b}^  the  declarants  as  a  little  town  or  village  in  the  State  of  Cara- 
bobo. Lasry  states  that  "the  better  part"  of  his  stock  of  merchandise 
was  taken  by  the  soldiery,  and  he  gives  the  value  of  the  part  taken  as 
$15,000  gold — manifestly  an  exaggeration. 

The  Commissioners,  regarding  the  fact  as  shown  that  Lasry  sus- 
tained some  loss,  but  unable  to  accept  his  uncorroborated  estimate  of 
the  value  of  the  property  taken,  have  agreed  to  make  an  allowance  in 
this  claim  of  the  sum  of  $2,000,  without  interest,  as  being,  under  all 
the  circumstances,  the  nearest  approach  possible  to  an  equitable 
determination. 


REPORT  OF  ROBERT  C.  MORRIS.  137 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Isaac 
J.  Lasry,  claimant,  against  the  Republic  of  Venezuela,  No.  12,  the  sum 
of  $2,000  in  United  States  gold  coin  is  hereby  awarded  in  favor  of  said 
claimant,  which  sum  shall  be  paid  by  the  Government  of  Venezuela  to 
the  Government  of  the  United  States  of  America  in  accordance  with 
the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  jjart  of  Yenezuela. 

Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on.  the  part  of  the  United  States  of  America. 

Delivered  July  21,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on   behalf 
of  Elias  Assad  Flutie,  claimant, 

r. 
The  Republic  of  Venezuela. 


No.  13. 


BRIEF   ON   BEHALF   OF   THE   UNITED   STATES. 

I. 

STATEMENT   Ol'^    FACTS. 

The  United  States  presents  in  this  case  the  claim  of  Elias  Assad 
Fbitie  for  damages  in  the  sum  of  $80,000. 

Mr.  Fhitie  is  a  natuiaiizcd  citizen  of  the  United  States,  having  been 
naturalized  on  the  2d  day  of  -luly,  1900,  at  the  district  court  of  the 
United  States  of  America  for  the  eastern  district  of  New  York. 
Claimant  lias  for  some  tim(^  been  operating  a  gener-al  store  in  the  city 
of  Yra))!i,  in  the  Repul)lic  of  Venezuela.  His  claim  is  for  forced  loans, 
destruction  of  propiu-ty,  fals(»  ai'rests,  and  ill  treatment  in  connection 
therewith,  received  partially  at  the  hands  of  the  Government  troops 
and  partially  at  the  hands  of  the  insurgents,  between  September,  1900, 
and  March,  1902.  The  facts  set  forth  in  the  memorial  show  that  the 
claimant  was  visited  at  various  times  by  Government  officers,  primarily 


138  REPOET  OF  KOBERT  C.  MORRIS. 

to  iiKikc  I'diiihI  loaiiss  oi  inoiiov,  which  weiv  in  niuny  cases  obtained. 
That  l)ecause  of  chiinianfs  rel'usal  to  suhniit  to  such  forced  loans.  Ins 
store  was  I'aided  on  rej)eated  occasions,  he  himself  was  repeatedly 
arrested  and  lodged  in  jail  and  k(>i)tfor  indelinite  periods,  and  released 
only  u})on  his  consentin*>-  to  make  the  demanded  forced  loans,  or  when 
the  otlicers  of  the  Goveriun(Mit  had  in  the  meantime  succeeded  in  obtain- 
inu-  from  his  store  such  goods  and  mone^^  as  they  demanded.  The 
memorial  states  seventeen  specitic  instances  of  such  illegal  acts  on  the 
part  of  the  officers  of  the  present  (Tovernment;  it  also  states  seven 
similar  unlawful  acts  on  the  part  of  the  revolutionary  officers. 

The  facts  in  this  case  are  amply  supported  in  every  detail  by  not 
only  the  sworn  memorial  and  its  accompanying  exhibits,  but  also  by 
the  testimony  of  Mr.  Abraham  Flutie,  Mrs.  Emelia  A.  Flutie,  Elias  A. 
Flutie,  the  complainant  himself,  and  Julian  A.  Flutie.  The  evidence 
clearly  shows  that  the  acts  complained  of  as  acts  of  the  Government 
officials  were  acts  done  by  or  under  direct  authorization  of  the  mili- 
tar}'  officials  of  the  Venezuelan  Government  of  a  rank  such  as  to 
make  the  Government  responsible  for  their  acts.  The  evidence  also 
clearl}^  shows  that  the  unlawful  acts  of  the  revolutionary  soldiers 
complained  of  were  done  under  circumstances  where  the  property 
could  have  been  amply  protected  by  the  Government  forces  and 
authorities,  but  that  they  took  no  action  whatsoever  to  render  that 
protection. 

The  evidence  is  also  clear  that  the  value  of  the  property  taken  and 
of  money  obtained  by  such  forced  loans  was  at  least  the  sum  of 
$30,000  demanded  in  this  respect,  the  remainder  of  the  claim  being 
for  personal  injuries  and  indignities  suffered  by  the  claimant. 

II. 

The  Government  of  Yenezuela  is  clearly  liahlefor  the  uirongs  complained 
of  done  hy  the  military  and  other  officials  of  the  Yeneznelan  Oovern- 
ment. 

There  can  be  no  question,  as  a  matter  of  international  law,  that  the 
Government  of  Venezuela  is  responsible  for  the  damages  to  property 
and  for  the  personal  injuries  which  claimant  has  suffered  in  this  case. 

The  claim  consists  in  the  first  place  of  a  large  number  of  forced 
loans.  The  rule  of  international  law  is  clear  that  a  government  is 
responsible  for  the  repayment  of  mone3^s  obtained  by  such  forced 
loans  upon  foreigners,  except  in  the  single  instance  of  where  the  loan 
was  simply  a  general  imposition  upon  all  the  inhabitants  of  a  particu- 
lar district,  which  was  not  the  case  in  this  instance.  The  authorities 
stating  the  right  to  recover  for  such  forced  loans  are  clear.  (See  the 
decided  cases  before  similar  commissions,  Moore's  International  Arbi- 
trations, vol.  4,  pp.  3409  to  3424.) 

The  rule  of  international  law  is  equall}^  clear  as  to  property  taken, 
whether  it  be  regarded  as  property  taken  for  the  use  of  the  Govern- 
ment, or  as  property  destroyed  by  the  Government  troops.  So  far  as 
this  property  was  taken  for  the  use  of  the  Government  troops,  as  it 
appears  most  of  it  must  have  been,  the  right  of  recovery  is  clearly 
sustained  by  the  decided  cases.  (See  4th  Moore's  International  Arbi- 
trations, p.  3714  et  seq.)  So  far  as  the  claim  ma}^  refer  to  property 
destroyed,  it  is  clear  that  it  was  destroyed  either  with  the  authority 


REPORT  OF  ROBERT  C.  MORRIS.  139 

or  in  the  presence  of  commanding  officials  who  had  the  means,  but 
did  nothing'  to  prevent  the  outrage.  These  facts  give  the  claimant 
a  right  to  compensation.  (See  the  opinion  of  the  Chilean  Claims 
Commission  as  set  forth  in  the  fourth  volume  of  Moore's  Interna- 
tional Arbitrations,  pp.  3711  to  3712.)  It  is  equally  clear  that  the 
Venezuelan  Government  is  liable  to  respond  in  damages  for  the  illegal 
arrests  and  unlawful  detentions  of  the  claimant  in  jail,  as  well  as  for 
the  personal  indignities  and  hardships  which  he  was  forced  to  undergo. 
These  arrests  seem  to  have  been  wholly  without  cause,  unless  a  refusal 
to  consent  to  the  forced  loans  or  to  the  practical  confiscation  of  his 
property  be  regarded  as  a  sufficient  cause  for  an  arrest.  All  the 
arrests  were  moreover  accompanied  b}"  unusual  circumstances  of  hard- 
ship, personal  affronts,  both  to  the  claimant  and  to  his  wife  and 
employees,  and  every  manner  of  personal  indignit}^  seems  to  have 
been  inflicted  upon  the  claimant.  The  rule  of  international  law  is 
clear  that  a  government  is  liable  to  respond  in  damages  either  for  an 
arrest  without  cause,  or  an  unlawful  detention  even  if  the  arrest  was 
with  probable  cause,  and  for  harsh  and  arbitrary  treatment  in  any 
case.  (See  the  decided  cases  collated  by  Mr.  Moore  in  the  fourth  vol- 
ume of  his  work  on  International  Arbitrations,  p.  3235  et  seq.) 

III. 

The  Government  of  Venezuela  is  equally  responsible  in  this  case  fm' 
the  v^^rmigful  acts  done  hy  the  revolutionary  soldiers. 

It  appears  from  the  facts  in  this  case  that  the  wrongs  perpetrated 
b}'  the  revolutionary  soldiers  were  under  circumstances  where  the 
injur}'  could  easily  have  been  prevented  by  the  Government  forces 
who  were  present  in  the  city  of  Yrapa  in  greater  numbers  than  the 
insurgents,  and  who  took  either  no  action,  or  at  least  no  such  efficient 
action  as  they  might  have  taken  to  prevent  these  occasional  raids  of 
the  insurgent  forces  and  the  consequent  injuries  to  the  claimant. 

The  rule  of  international  law  whereby  a  government  is  liable  for 
failing  to  protect  foreigners  within  its  limits  from  such  injuries  where 
it  is  clearly  shown  to  lie  within  its  power  to  do  so,  or  that  the  authori- 
ties took  no  proper  action  for  that  purpose,  is  fundamental. 

IV. 

An  award  should  he  made  for  the  full  amount  of  the  claim. 

So  far  as  the  claim  is  made  up  of  mone}'  taken  on  forced  loans  and 
property  either  taken  or  destroyed,  the  evidence,  as  we  have  alread} 
stated,  clearly  establishes  the  loss  of  the  §30,000  claimed.  The  claim 
of  $50,000  for  false  arrest,  illegal  detention,  and  personal  indignities 
suffered  is,  we  think,  under  the  circumstances  and  the  aggravated 
character  of  the  injuries  (complained  of  in  this  case,  a  moderate  claim. 

We  submit,  therefore,  that  an  award  should  be  made  for  the  entire 
claim. 

Respectfully  submitted. 

RoBEiiT  C.  Morris 
Agent  of  the  United  States. 


140  REPORT  OF  ROBERT  C.  MORRIS. 

Befox'e  the  Mixed  Commission  organized  under  the  protocol  of  Fehi  ii- 

ary  17,  1003,  l)etweon  the  United  States  of  America 

and  the  Ivepublic  of  Venezuela. 

The  United  States  of  America  on  ueiialf 

of  Emilia  Alsous  Flutie,  claimant,  I  at     ^  , 

V. 

The  Republic  of  Venezuela. 

brief  on  behalf  of  the  united  states. 

1. 

statement  of  facts. 

The  United  States  presents  in  this  case  the  claim  of  Emilia  Alsous 
Flutie  for  damag-es  in  the  sura  of  ^21,500. 

The  claimant  is  the  wife  of  Elias  Assad  Flutie,  and  he  is  a  naturalized 
citizen  of  the  United  States,  having  been  naturalized  on  the  2d  of  July, 
1900,  in  the  eastern  district  of  New  York.  The  claimant's  husband 
had  for  some  time  prior  to  the  matters  complained  of  been  operating 
a  general  store  in  the  city  of  Yrapa,  in  the  Republic  of  Venezuela,  and 
claimant  herself  carried  on  a  separate  business  in  connection  therewith, 
trading  in  articles  suitable  for  ladies'  wearing  apparel  and  personal 
adornment,  and  she  owned  the  stock  in  trade,  consisting  of  laces,  silks, 
perfumery,  etc.,  of  the  value  of  $1,500. 

Her  claim  is  for  the  destruction  of  this  property  and  for  personal 
ill  treatment  and  indignities  received,  partially  at  the  hands  of  the 
Government  troops  and  partial!}^  at  the  hands  of  the  insurgents, 
between  September,  1900,  and  March,  1902. 

The  facts  set  forth  in  the  memorial  show  that  all  of  her  stock  in 
trade  was  carried  off  by  Government  officials  or  Government  troops, 
under  the  direction  of  their  officers,  and  that  the  claimant  was  repeat- 
edly subjected  to  personal  abuse,  attempted  criminal  assaults,  abusive 
language  and  gross  personal  indignities  by  the  officers  of  the  Govern- 
ment or  its  soldiers  under  the  command  of  their  officers,  and  in  like 
manner  on  two  instances  by  the  revolutionary  troops. 

The  facts  in  this  case  are  amply  supported  in  every  detail  by  not  only 
the  sworn  memorial  and  its  accompanying  affidavits,  but  also  by  the  testi- 
mony of  Mr.  Abraham  Flutie,  Mrs.  Emelia  A.  Flutie  the  claimant 
herself,  Elias  A.  Flutie,  and  Julian  A.  Flutie.  The  evidence  clearly 
shows  that  the  acts  complained  of  as  acts  of  the  Government  officials 
were  acts  done  by  or  under  direct  authorization  of  the  military  officials 
of  the  Venezuelan  Government,  of  a  rank  such  as  to  make  the  Govern- 
ment responsible  for  their  acts.  The  evidence  also  clearly  shows  that 
the  unlawful  acts  of  the  revolutionaiy  soldiers  complained  of  were 
done  under  circumstances  where  the  property  could  have  been  amply 
protected  by  the  Government  forces  and  authorities,  but  that  they 
took  no  action  whatsoever  to  render  that  protection. 

The  evidence  is  also  clear  that  the  value  of  the  propert}^  taken  was 
at  least  the  sum  of  $1,500  demanded  in  this  respect,  the  remainder  of 
the  claim  being  for  personal  injuries  and  indignities  suffered  by  the 
claimant. 


EEPORT  OF  ROBERT  C.  MORRIS.  141 

n. 

The  Government  of  Yetieziiela  is  clearly  liable  for  the  wrongs  com- 
plained of,  dmie  hy  the  military  and  othefr  officials  of  the  Veneztielan 
Government. 

There  can  be  no  question,  as  a  matter  of  international  law,  that  the 
Government  of  Venezuela  is  responsible  for  the  damages  to  property 
and  for  the  personal  injuries  which  claimant  has  suffered  in  this  case. 
The  claim  consists,  in  the  first  place,  of  a  claim  for  propert}'  taken  and 
destroyed.  It  is  clear  on  the  evidence  that  this  property  was  taken 
or  destroyed  either  with  the  authority  or  in  the  presence  of  command- 
ing officials  of  the  Government,  who  had  the  means  but  did  nothing  to 
prevent  the  outrage.  These  facts  give  the  claimant  a  right  to  com- 
pensation. (See  the  opinion  of  the  Chilean  Claims  Commission,  as  set 
forth  in  the  fourth  volume  of  Moore's  International  Arbitrations, 
pages  3711  to  3712.)  It  is  equally  clear  that  the  Venezuelan  Govern- 
ment is  liable  to  respond  in  damages  for  the  personal  affronts,  indig- 
nities, and  hardships  which  the  claimant  was  compelled  to  undergo. 
These  acts  seem  to  have  been  committed  wholly  without  cause,  as  acts 
of  wanton  and  unprovoked  injury  and  insult.  The  rule  of  interna- 
tional law  holding  a  government ^-esponsible  for  damages  in  such  a 
case  is  clear  bevond  a  question.  (See  the  cases  collected  by  Mr.  Moore 
in  the  fourth  volume  of  his  work  on  International  Arbitrations,  page 
3235  et  seq.) 

III. 

The  Government  of  Venezuela  is  equally  responsible  in  this  case  for 
the  Lorongful  acts  done  by  the  revolutionary  soldiers. 

It  appears  from  the  facts  in  this  case  that  the  wrongs  perpetrated 
by  the  revolutionary  soldiers  were  under  circumstances  where  the 
injury  could  easily  Lave  been  prevented  by  the  Government  forces 
who  were  present  in  the  city  of  Yrapa  in  greater  numbers  than  the 
insurgents,  and  who  either  took  no  action,  or  at  least  no  such  efficient 
action  as  they  might  have  taken  to  prevent  these  occasional  raids  of 
the  insurgent  forces  and  the  consequent  injuries  to  the  claimant. 

The  rule  of  international  law  whereby  a  government  is  liable  for 
failing  to  protect  foreigners  within  its  limits  from  such  injuries  where 
it  is  clearly  shown  to  lie  within  its  power  to  do  so,  or  that  the  author- 
ities took  no  proper  action  for  that  purpose,  is  fundamental. 

IV. 

The  claimant  is  entitled  to  bring  this  action  as  a  citizen  of  the  United 

States. 

It  appears  from  the  evidence  that  the  claimant's  husband  was  a 
natmalized  citizen  of  the  United  States.  This  fact  makes  the  claimant 
also  a  citizen  of  the  Ignited  States;  certainly,  at  least,  during  the  life- 
time of  her  husband.  There  can  l)e,  we  think,  no  (juestion  that  as  a. 
rule  of  international  law  the  nationality  of  the  wife  nuist  be  that  of 
her  husband.  (See  the  decisions  collated  in  the  third  volume  of 
Moore's  work  on  International  Arbitrations,  page  2483  et  seq.)     In 


142  REPORT    OK    K015KRT    C.    MORRIS. 

these  cases  the  rule  seems  to  be  laid  down  that  during  the  life  of  the 
husband  tho  nationality  of  the  wife  is  that  of  tlic  husl)and;  that  upon 
his  death  she  has  the  right  to  choose  whether  she  will  retain  tho 
nationality  of  her  deceased  husband  or  return  to  that  of  her  birth, 
which  (^l(H'tion  or  choice  she  may  be  determined  to  have  made  l)y  the 
facts  in  the  case;  but  in  this  case,  as  it  ap])cars  the  husband  is  still 
living,  \ve  think  there  can  be  no  question  that  tho  claimant  is  a  citizen 
of  the  United  States,  and  as  such  is  entitled  to  present  her  claim  before 
this  Commission. 

V. 

An  award  should  he  made  for  the  full  amount  of  the  claim. 

So  far  as  the  claim  is  made  up  of  property  either  taken  or  destroyed, 
the  evidence,  as  we  already  have  stated,  clearly  establishes  the  loss  of 
the  $1,500  claimed.  The  claim  for  $20,000  for  personal  indignities 
suffered  is,  we  think,  under  the  circumstances  and  the  aggravated 
character  of  the  injuries  complained  of  in  this  case,  a  moderate  claim. 

We  submit  therefore  that  an  aAvard  should  be  made  for  the  entire 
claim. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Nos.  13  and  14. 
ANSWER. 

To  the  honorable  members  <f  the  Yenezuela?i-America7i  Mixed  Comviis- 

sion: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claims  presented  by  Elias  Assad  Flutie  and 
his  wife,  Amelia  Alsous  Flutie,  Turks  by  birth,  naturalized  citizens 
of  the  United  States,  on  account  of  damages  sustained  in  their  prop- 
ert}^  during  the  last  civil  wars  which  have  taken  place  in  Venezuela, 
and,  as  a  result  of  this  stud}-,  he  respectfully  calls  to  the  attention  of 
the  Commission  the  following: 

The  proof  upon  which  the  two  claims  are  supposed  to  be  founded  con- 
sists in  mutual  declarations  of  both  husband  and  wife  and  their  nearest 
relations  of  consanguinity  and  afBnity.  Julian  and  Abraham  Flutie, 
who,  besides  this  relationship  which  they  bear  to  the  claimants,  prob- 
ably have  an  interest  in  the  business  which  was  established,  as  is  evi- 
denced by  the  circumstances  that  they  all  lived  in  the  same  city  of 
Yrappa,  and  that  they  have  all  gone  to  the  United  States  together. 

It  is  a  rule  of  common  law,  admitted  and  sanctioned  by  the  legisla- 
tion of  all  civilized  people,  that  the  testimony  of  persons  closely 
related  by  blood  to  tho  parties  before  the  court,  or  who  have  an  interest 
in  the  action,  is  not  admissible  even  as  circumstantial  evidence.  Since 
the  evidence  is  in  such  shape,  it  is  clear  that  the  claims  lack  proof  and 
ought,  therefore,  to  be  declared  as  not  having  been  proved. 

Caracas,  June  29,  1903. 

F.  Arroyo  Parejo. 


EEPOET  OF  ROBERT  C.  MORRIS.  143 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United   States  of  America  on  behalf 
of  Elias  Assad  Flutie 

V. 

The  Republic  of  Venezuela. 

The  United  States  of  America  on   behalf 
of  Amelia  Alsous  Flutie 

V. 

The  Republic  of  Venezuela. 


^No.  13. 


rNo.  14. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

The  Republic  of  Venezuela  has  joined  the  two  claims  abov^e  in  its 
answer,  and  the  United  States  therefore  joins  them  in  its  replication. 
The  United  States  takes  issue  on  the  stand  of  Venezuela  in  relation  to 
the  sufficiency  of  the  proof  adduced: 

I. 

The  contention  of  Venezuela  that  the  proofs  submitted  are  not 
admissible,  even  as  circumstantial  evidence,  can  not  be  sustained. 
The  proofs  submitted  are  in  accordance  with  the  protocol  as  provided 
in  Article  II,  which  states: 

The  Commissioners,  or  umpire,  as  the  case  may  be,  shall  investigate  and  decide 
said  claims  upon  such  evidence  or  information  only  as  shall  be  furnished  by  or  on 
behalf  of  the  respective  Governments.  They  shall  be  bound  to  receive  and  consider 
all  written  documents  or  statements  which  may  be  presented  to  them  by  or  on  behalf 
of  the  respective  Governments  in  support  of  or  in  answer  to  any  claim.     *    *    * 

The  evidence  produced  in  support  of  these  claims  is  in  the  form  of 
depositions  taken  before  competent  officers  and  clearly  proves  the 
claims  as  made.  Even  if  nothing  more  than  unsworn  papers,  it  would 
deserve  the  scrupulous  attention  of  this  court  for,  as  above  quoted, 
"theConmii.ssioners  *  *  *  shall  investigate  and  decide  said  claims 
upon  such  evidence  or  information  only  as  shall  be  furnished  by  or  on 
behalf  of  the  respective  Governments."  Furthermore  thevare  bound 
to  "receive  and  consider  all  written  documents  or  statements  which 
may  be"  similarly  presented  to  them.  To  accept  the  interpretation 
suggested  by  the  answer  would  require  the  Commission,  in  the  face  of 
the  protocol,  to  reject  the  depositions  submitted,  and  this  it  is  without 
power  to  do. 

The  fact  tliat  the  claimant  and  his  witnesses  are  nearly  related  is 
something  which  goes  to  the  weight  of  the  evidence  and  not  to  its 
admissil)ilit3%  as  is  well  undci'stood  under  the  laws  of  England  and  the 
United  States  as  well  as  many  other  countries.  Even  when  in  Eng- 
land and  tlic  United  States  the  testimony  of  parties  interested  was  not 
received,  this  exclusion  only  extended  to  the  plaintiff  or  defendantand 
did  not  affect  the  other  members  of  his  family  except  in  certain  cases 
the  wife.  It  would  therefore  follow  that  under  the  ancient  rule  now 
rejected  in  England  and  America,  because  of  its  unreasonable  and 
inequitable  character,  even  though  the  depositions  of  the  claimants  in 


144  KKl'OKT    OF    KOHKKT    ('.   MOKRIS. 

tills  caso  wore  to  l)o  rejootod,  the  testimony  of  the  In'othors  is  ample 
ill  itself,  sustains  the  iiieinorial  ami  must  be  reecived. 

Hut.  even  under  the  old  law  of  England  and  the  United  States,  in 
eases  sueh  as  the  present,  the  testimony  of  the  parties  was  receivable 
for,  as  appears  bv  section  1288  of  Sedgwick  on  Damages,  even  when 
evidtMieeof  parties  was  rejected,  the  rule  was  not  enforced  when  direct 
injur \  was  intlictcd  by  the  defendant  upon  the  plaintiff.     Thus — 

To  jirove  the  trutli  of  entries  in  lii8  (plaintiff's)  1)ooks  of  account,  delivered  in 
small  amounts,  or  of  daily  labor  i>erfornied  when  the  party  from  his  situation  has  no 
evidence  hut  the  accounts  kept  by  himself  and  where,  as  a  general  thing  from  the 
nature  of  tiie  trallic  or  services,  lie  could  not  have.  So,  too,  where  robberies  or 
larcenies  have  been  conmiitted  and  no  evidence  (existed  but  that  of  the  party  robbed 
or  plundered,  he  has  been  admitted  as  a  witness  to  prove  his  loss;  for  it  was  said 
that,  in  these  i-ises,  the  party  injured,  should  have  an  extraordinary  remedy  in 
odium  spoliatoris.  *  *  *  So  also  in  equity,  where  a  man  ran  away  with  a  casket 
of  jewels,  the  partv  injured  was  admitted  as"  a  witness.  So  too,  when  the  defend- 
ant, a  shipmaster,  broke  open  and  plundered  the  plaintiff's  trunk,  the  latter  was 
allowed  to  testify  to  the  contents  of  the  trunk. 

In  the  present  instance,  the  only  witnesses  having  full  and  definite 
knowledge  of  the  facts  who  might  be  assumed  favorable  to  the  plain- 
tiff' and  whose  evidence  was  in  any  degree  available  were  examined. 

It  is  to  be  noted  as  a  pregnant  fact  that  Venezuela  makes  no  denial 
whatsoever  of  the  facts  stated  by  and  on  behalf  of  the  claimants, 
although  exact  knowledge  of  these  facts  was  easily  obtainable  by  her 
or  rested  entirely  in  her  possession.  The  testimony,  therefore,  of  the 
claimant  and  his  witnesses  remains  unimpeached  and  unchallenged  and 
in  the  absence  of  countervailing  proof  must  be  treated  as  absolute 
verit3\ 

11. 

Referring  again  to  the  contention  of  Venezuela  as  to  the  inadmissi- 
bility of  the  evidence,  it  is  stated  on  her  behalf  that  "the  testimony  of 
persons  closely  related  b}^  blood  to  the  parties  before  the  court  or  who 
nave  an  interest  in  the  action  is  not  admissible  even  as  circumstan- 
tial evidence.''  This  may  be  the  law  of  Venezuela,  but  we  are  not 
bound  by  it  under  the  protocol. 

Even  "the  law  of  Spain  (Escriche,  Volume  IV,  p.  1109,  title,  Testigo) 
only  provided  that  a  brother  could  not  testify  for  another  while  they 
lived  together  under  the  paternal  authority;  but  in  the  present  case, 
as  appears  from  the  consicleration  of  the  evidence,  the  family  does  not 
live  together,  the  claimant  subscribing  to  the  memorial  in  the  State  of 
Ma.ssachusetts,  Abraham  Flutie  giving  his  testimony  in  Wilkesbarre, 
Pa.;  Mrs.  Amelia  Flutie  in  Wilkesbarre,  and  Julian  Flutie  in  Wash- 
ington, D.  C.  Abraham  Flutie  afterwards  changed  his  residence  to 
Baltimore.  The  several  towns  are  many  hundred  miles  apart,  except 
Baltimore  and  Washington,  40  miles  from  each  other.  And  it  nowhere 
appears  in  the  testimony  that  they  are  still  under  the  paternal 
authority. 

III. 

In  considering  the  testimony  produced  in  these  cases,  it  is  necessary 
to  bear  in  mind  the  amount  of"  testimony  that  the  claimants  have  been 
able  to  secure.  The  only  other  witness  whose  testimony  could  bear 
materiall}"  on  the  case  is  another  employee  of  the  claimants  by  the 


REPORT  OF  ROBERT  C.  MORRIS.  145 

name  of  Victor  Ferralle.  Frequent  attempts  have  been  made  b}-  the 
claimants  to  locate  Mr.  Ferralle,  with  a  view  to  adding  his  testimony 
to  that  alread}^  produced,  but  so  far  such  attempls  have  met  with  no 

success. 

IV. 

The  suggestion  that  the  parties  have  a  mutual  interest  in  the  busi- 
ness is  not  borne  out  b}^  the  testimon}'  or  by  any  of  the  circumstances 
of  the  case,  and  therefore  calls  for  no  special  reph^,  contradicted  as  it 
is  by  the  express  testimonj^  of  the  several  witnesses. 

V. 

Further  as  to  the  admissibilit}'  of  the  evidence  submitted  we  respect- 
fully refer  to  our  previous  discussion  of  this  subject  in  the  claim  of 
Foi'd  Dix  (No.  1),  where  we  have  quoted  authorities  which  show  that 
any  evidence  which  tends  to  produce  a  moral  conviction  in  the  minds 
of  the  Commission  is  sufficient.  We  refer  to  the  findings  of  the  Hali- 
fax Commission;  to  the  opinion  of  Mr.  Kobert  Bunch,  in  the  case  of 
the  Monti  jo;  and  to  the  holding  of  Judge  Davis  in  the  Caldera  cases 
(15  C.  Cls.  R.,  546). 

Furthermore,  as  to  the  technical  rules  of  evidence  which  would  appear 
to  be  invoked  by  the  answer  of  Venezuela,  w^e  respectfuU}^  call  the 
attention  of  the  Commission  to  the  third  paragraph  of  Article  I  of  the 
protocol,  where  it  is  provided  that: 

The  Commissioners,  or  in  case  of  their  disagreement  the  mnpire,  shall  decide  all 
claims  upon  a  basis  of  absolute  equity,  without  regard  to  objections  of  a  technical 
nature  or  of  the  provisions  of  local  legislation. 

In  this  connection  we  desire  to  call  the  attention  of  the  Commission 
to  Meade's  case  (2  C.  Cls.  R.,  p.  271),  which  states: 

Mostof  the  difficulties  that  have  attended  thiscaseoriginatedinwhatwedeem  amis- 
take  of  the  Commissioners  under  this  treaty.  They  applied  the  strict,  rigid,  techni- 
cal rules  of  evidence  that  belong  to  the  administration  of  municipal  or  criminal 
justice  in  the  adjustment  of  these  international  affairs  to  which  they  were  inajypro- 
priate. 

The  engagement  of  nations,  the  adjustment  of  their  claims  upon  each  other,  or 
those  of  their  respective  citizens  and  subjects,  should  not,  and  for  obvious  reasons 
can  not,  be  subjected  to  the  narron;  techriiml  rules  of  ordinary  tribunals. 

"We  submit  that  the  evidence  in  these  cases  is  the  best  which  could 
1)6  pos.silih'  obtained;  that  it  is  full  and  sufficient,  and  that  an  award 
should  be  made  for  tlie  full  amount  claimed. 
Respectfully  submitted. 

RoRERT  C.  Morris, 
Agent  of  the  United  States. 

S.  Doc.  317,  58-2 10 


146  REPORT  OF  ROBERT  C.  MORRIS, 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


No.  13. 


The  United  States  of   Amekica  on  behalf  ~ 
of  Elias  Assad  Flutie,  claimant, 

V. 

The  Republic  of  Venezuela. 

and 

The  United  States  of  America  on  behalf 

of  Emilia  Alsous  Flutie,  claimant,  [^     ^. 

The  Republic  "f  Venezuela. 

DECISION. 

Opinion  b}^  Bainbridge,  Commissioner. 

The  Commission  dismisses  the  above-entitled  claims,  without  preju- 
dice, for  want  of  jurisdiction. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting-  at 
Caracas,  Venezuela. 


^No.  13. 


The  United  States  of  America  on  behalf 
of  Elias  Assad  Flutie,  claimant, 

V. 

The  Republic  of  Venezuela. 
and 

The  United  States  of  America  on  behalf] 

of  Emilia  Alsous  Flutie,  claimant,  -vt     -,  . 

'  '  ^No,  14. 

V. 

The  Republic  of  Venezuela. 

Bainbridge ,  Com m issioner. 

For  reasons  hereinafter  made  apparent  it  is  deemed  advisable  to 
consider  these  two  claims  together. 

The  memorial  of  Elias  Assad  Flutie,  subscribed  and  sworn  to  on  March 
7,  1903,  before  William  J.  Marshall,  a  notary  public  in  and  for  tlie 
county  of  Middlesex,  State  of  Massachusetts,  states: 

1.  That  the  said  Elias  A.  Flutie  is  a  native  of  Syria,  27  years  of  ago; 
that  he  came  to  the  United  States  in  the  year  1892,  and  was  naturalized 
a  citizen  of  the  United  States  on  the  2d  "day  of  July  in  the  year  19(10, 
in  the  district  court  of  the  United  States  of  America  for  the  eastern 
district  of  New  York,  sitting  in  the  city  of  Brooklyn,  in  proof  whereof 
said  claimant  produces  with  his  memoi'ial  a  certified  copy  of  said  cer- 
tificate of  naturalization,  marked  "Exhi})it  A,"  and  that  claimant  is 
now  a  citizen  of  the  United  States,  and  a  resident  of  tiie  city  of  Wilkes- 
barre,  State  of  Pennsylvania. 

2.  That  about  the  3- ear  1899  claimant  went  temporarily  to  the  cit}' 
cf  Yrapa,  in  the  Republic  of  Venezuela,  to  establish  a  business  as  a 


REPORT  OF  ROBERT  C.  MORRIS.  147 

general  merchant,  returning  shortly  afterwards  to  the  United  States, 
leaving  said  business  in  charge  of  his  In'others;  that  said  business  was 
conducted  for  the  period  of  one  year  without  interruption,  resulting 
in  a  large  profit  to  the  claimant;  that  claimant  returned  to  Venezuela 
from  time  to  time  to  supervise  the  conduct  of  said  business;  that  he 
was  at  all  times  the  sole  person  interested  in  said  business;  that  his 
stock  in  trade  was  worth  about  130,000;  that  all  of  claimant's  books 
of  account  and  records  of  what  stock  he  had  were  destroyed,  but  that  he 
is  able  to  state  from  memory  what  amoimt  of  stock  there  was  on  hand, 
and  he  attaches  an  inventory  thereof  marked  "Exhibit  B;"  that  he 
emplo3'ed  as  clerks  to  assist  him  in  said  business  his  two  brothers, 
Julian  and  Abraham  Flutie,  and  also  two  other  persons  named  Victor 
Ferralle  and  Jose  R.  Romero. 

3.  That  the  claimatit  returned  from  the  United  States  in  August, 
1900,  and  from  that  time  claimed  citizenship  in  the  United  States  and 
the  protection  of  the  United  States  Government;  that  prior  to  his 
return  to  Venezuela  a  revolution  broke  out  in  that  Republic;  that  at 
various  times  after  his  return,  between  September,  1900,  and  March, 
1902,  he  was  the  victim  of  forced  loans,  destruction  of  property,  false 
arrests  and  illtreatment  in  connection  therewith,  received  partially 
at  the  hands  of  the  Government  officials  and  troops  and  partially 
at  the  hands  of  the  insurgents;  that  his  store  was  raided  on  repeated 
occasions;  he  himself  was  repeatedly  arrested  and  lodged  in  jail  and 
kept  for  indefinite  periods,  and  released  only  upon  his  consenting  to 
make  the  demanded  forced  loans,  or  when  the  officers  of  the  Govern- 
ment had  in  the  meantime  obtained  from  his  store  such  goods  and 
mone}-  as  they  demanded.  The  memorial  states  17  specific  instances 
of  such  alleged  illegal  acts  on  the  part  of  the  officers  of  the  Govern- 
ment and  7  similar  unlawful  acts  on  the  part  of  the  revolutionists; 
that  because  of  said  acts  of  violence  all  of  claimant's  property,  to  the 
value  of  830,000  in  United  States  gold,  was  confiscated,  lost,  or 
destroyed,  and  that  on  June  7,  1901,  the  claimant,  together  with  his 
wife  and  children,  was  forced  to  leave  the  countr}^ 

4.  Claimant  demands  from  the  Government  of  Venezuela  as  a  just 
recompense  for  the  injuries  he  has  suffered,  for  loss  of  property  the 
sum  of  ^30,000  and  for  illtreatment  the  sum  of  $50,000,  in  all,  the  sum 
of  880,000  in  United  States  gold  coin. 

The  memorial  of  Emilia  Alsous  Flutie,  subscribed  and  sworn  to  on 
March  31,  1903,  before  Arthur  L.  Turner,  a  notary  public  in  and  for 
Luzerne  County,  State  of  Pennsylvania,  states: 

1.  That  the  said  Emilia  Alsous  Flutie  is  a  native  of  Syria,  25  years 
of  age;  that  in  the  city  of  Carupano  in  the  Republic  of  Venezuela  on 
the  22d  day  of  July*  1897,  she  was  married  to  P^lias  Assad  Flutie 
according  to  the  rites  of  the  Roman  Catholic  Church,  having  previ- 
ously, to  wit,  on  the  25th  of  April,  1890,  been  maVricd  by  the  civil 
authorities  of  said  Republic  to  said  Elias  A.  Flutie;  that  her  husband 
was  naturalized  a  citizen  of  the  United  States  of  America  on  the  2d 
day  of  .luly,  1900,  in  the  district  court  of  the  United  States  for  the 
eastern  district  of  New  York,  sitting  in  the  city  of  Brooklyn;  that  a 
duplicate  of  his  certificate  of  naturalization  is  attached  to  her  memorial, 
maiked  '' Exhil)it  A;"  that  by  virtue  of  the  naturalization  of  Elias 
Assad  Flutie  as  a  citizen  of  the  United  States  claunant  is  a  citizen 
thereof;  and  that  she  is  now  a  resident  of  the  city  of  Wilkesbarre, 
State  of  Pennsylvania. 


148  REPORT  OF  KOHKRT  0.  MORRIS. 

'2.  Thut  from  (ho  month  of  Soptoinbor,  LlKK),  to  the  month  of  Juno, 
1001,  claimant  Avas  with  lier  husl)aiul  in  the  city  of  Yrapa,  Venezu- 
ela; that  apart  from  her  husband's  l)usiness,  and  in  her  own  name,  for 
her  own  separate  bcnetit,  claimant  used  to  carry  on  a  small  trade  in 
toilet  articles,  etc.;  that  her  stock  in  trade  was  worth  $1,500;  that 
claimant  was  unable  to  preserve  any  documents  showin<(  her  actual 
stock,  but  is  abU^  to  state  from  memory  what  amount  of  stock  she  had 
on  hand  and  attaches  to  her  memorial  an  inventory  thereof,  marked 
""Exhibit  B,"  which  sets  forth  the  amount  and  cost  value  of  the  arti- 
cles; and  that  she  was  the  sole  person  interested  in  said  business. 

3.  That  during-  the  year  1900  and  1901  there  was  a  revolution  in 
progress  in  Venezuela,  in  the  course  of  which  she  was  subjected  at 
various  times  to  such  illtreatment,  at  the  hands  of  l)oth  the  Govern- 
ment officials  and  the  insurgents,  that  she  became  ill;  that  as  a  result 
of  such  illtreatment  her  health  has  been  permanentl}^  impaired;  that 
toward  the  close  of  December,  1900,  certain  Government  officials 
arrested  and  imprisoned  claimant's  husband,  and  in  his  enforced 
absence,  said  officials  tried  to  criminall}'  assault  claimant  and  were 
driven  ofi'  by  the  claimant  at  the  point  of  a  pistol;  that  they  took  pos- 
session of  all  the  goods  which  belonged  to  claimant,  and  after  having 
destro3^ed  some  took  the  remainder  away  with  them,  said  property 
being  of  the  value  of  $1,500  gold,  and  that  on  June  7,  the  claimant, 
tog-ether  with  her  husband  and  children,  was  forced  to  leave  the  coun- 
tr}',  sailing  from  Yrapa  at  night  during  a  heavy  tropical  tempest  in  a 
small  sailboat  of  about  5  tons  burden,  which  afforded  absolutel}^  no 
shelter,  and  that  after  four  da3^s  of  such  exposure  they  at  length  reached 
the  island  of  Trinidad. 

4.  Claimant  demands  as  a  just  recompense  for  her  loss  of  propert}^ 
the  sum  of  $1,500,  and  for  the  illtreatment  she  has  suffered  the  sum 
of  $20,000;  in  all,  the  sum  of  121,500  in  United  States  gold  coin. 

The  two  claims  aggregate  the  sum  of  $101,500  gold. 

The  only  testimony  introduced  is  that  of  the  claimants  themselves 
and  of  Abraham  and  Julian  Flutie,  brothers  of  Elias  A.  Flutie. 

It  appears  from  the  evidence  that  the  claimants  were  suspected  by 
the  Venezuelan  authorities  of  unlawful  traffic  in  fraud  of  the  revenue, 
but  the  charges  of  smuggling  are  denied  by  the  claimants,  and  the 
arrests  are  alleged  to  have  been  without  just  foundation.  It  is  a  fact 
not  without  significance,  however,  that  although  the  alleged  outrages 
extended  over  a  period  of  nearly  a  year,  the  evidence  does  not  show 
that  during  that  time  any  notice  of  them  was  brought  to  the  attention 
of  the  consular  officers  or  diplomatic  representative  of  the  United 
States  in  Venezuela. 

But  in  view  of  the  position  taken  by  the  Commission  relative  to  these 
claims,  a  further  discussion  of  their  merits  is  unnecessary. 

Article  1  of  the  protocol  constituting  this  Commission  confers  juris- 
diction over  "all  claims  owned  by  citizens  of  the  United  States  of 
America  against  the  Kepublic  of  Venezuela  which  have  not  been  set- 
tled by  diplomatic  agreement  or  by  arbitration  between  the  two 
Governments." 

This  Commission  has  no  jurisdiction  over  any  claims  other  than  those 
owned  by  citizens  of  the  United  States  of  America.  The  American 
citizenship  of  a  claimant  must  be  satisfactorily  established  as  a  primary 
requisite  to  the  examination  and  decision  of  his  claim.  Hence  the 
Commission,  as  the  sole  judge  of  its  jurisdiction,  must  in  each  case 


REPORT  OF  ROBERT  C.  MORRIS.  149 

determine  for  itself  the  question  of  such  citizenship  upon  the  evidence 
■submitted  in  that  behalf. 

The  citizenship  of  claimants  is  as  full\'  a  question  of  judicial  deter- 
mination for  the  Connnission  in  respect  to  the  relevancy  and  weight 
of  the  evidence  and  the  rules  of  jurisprudence  by  which  it  is  to  be 
determined  as  any  other  question  presented  to  this  tribunal,  subject 
only  to  the  provisions  of  Article  II  of  the  protocol  that  the  Commis- 
sioners or  umpire,  as  the  case  may  be,  shall  investigate  and  decide 
claims  upon  such  evidence  or  information  only  as  shall  be  furnished 
by  or  on  behalf  of  the  respective  Governments. 

The  jurisdiction  of  the  Commission  over  both  of  these  claims  depends 
upon  the  American  citizenship  of  Elias  A.  Flutie.  The  evidence  of 
Flutie's  citizenship  in  each  case  is  a  copy  of  the  record  of  his  naturali- 
zation on  July  2,  1900,  in  the  district  court  of  the  United  States  for 
the  eastern  district  of  New  York.  The  record  recites  that  Flutie  had 
produced  to  the  court  such  evidence  and  made  such  declaration  and 
renunciation  as  are  required  by  the  naturalization  laws  of  the  United 
States,  and  that  he  was  accordingly  admitted  to  be  a  citizen  thereof. 

This  certificate  of  naturalization  as  the  record  of  a  judgment  of  a 
high  court  is  prima  facie  evidence  that  Elias  A.  Flutie  is  a  citizen  of 
the  United  States.  It  is  not,  however,  conclusive  upon  the  United 
States  or  upon  this  tribunal. 

In  the  case  of  Moses  Stern  (13  Op.  Atty.  Gen,,  376)  the  Attorney- 
General  of  the  United  States,  Mr.  Akerman,  said: 

Recitations  in  the  record  (i.  e.,  of  naturalization)  of  matters  of  fact  are  binding  only 
upon  parties  to  the  proceedings  and  their  privies.  The  Government  of  the  United 
States  was  no  party  and  stands  in  privity  with  no  party  to  these  proceedings.  And 
it  is  not  in  the  power  of  Mr.  Stern,  by  erroneous  recitations  in  ex  parte  proceedings, 
to  conclude  the  Government  as  to  matters  of  fact. 

In  the  circular  of  Mr.  Fish,  Secretary  of  State,  dated  May  2,  1871, 

he  says: 

It  is  material  to  observe  that  according  to  the  opinion  of  the  Attorney-General  in 
the  case  above  mentioned,  the  recitations  contained  in  the  record  of  naturalization, 
as  to  residence,  etc.,  are  not  conclusive  upon  either  this  or  a  foreign  government,  but 
that  when  such  recitals  are  shown  by  clear  evidence  to  be  erroneous,  they  are  to 
be  disregarded.     (Foreign  Relations  1871,  p.  25.) 

Such  is  still  the  position  taken  by  the  Department  of  State. 

As  for  the  naturalization  laws  to  which  you  allude,  they  are  of  direct  concern  to 
this  Department  only  so  far  as  they  affect  the  international  status  of  those  who  become 
naturalized.  As  you  are  aware,  the  Department's  regulations  require  every  natural- 
ized citizen  when'he  applies  for  a  passport  to  make  a  sworn  statement  concerning  his 
own  or  his  parents'  emigration,  residence,  and  naturalization;  and  whenever  the 
naturalization  appears  to  have  ])een  improperly  or  improvidently  granted,  it  is  not 
recognized  under  the  Department's  rules.  (Mr.  Hay,  Secretary  of  State,  to  Mr. 
Sampson,  June  21,  1902;  Foreign  Relations  1902,  p.  389.) 

The  record  of  a  judgment  rendered  in  another  State  may  be  contradicted  as  to  the 
facts  necessary  to  give  the  court  jurisdiction;  and  if  it  be  shown  that  such  facts  did 
not  exist  the  record  will  be  a  nullity,  notwithstanding  that  it  may  recite  that  they 
did  exist.     (Thompson  v.  Whitman,  18  Wall.,  U.  S.,  457.) 

In  Penny  whit  v.  Foot,  27  Ohio  St.,  98,  the  court  said  that  a  judg- 
ment ottered  in  evidence — 

may  be  contradicted  as  to  the  facts  necessary  to  give  the  court  jurisdiction;  and  if  it 
be  shown  that  such  facts  did  not  exist,  tlie  record  will  l)e  a  nullity,  notwithstanding 
it  may  recite  tliat  they  did  exist,  and  this  is  true  either  as  to  the  subject-matter  or 
the  person,  or  in  proceedings  in  rem.  as  to  the  thing. 


150  REPORT  OF  ROBERT  C.  MORRIS. 

'I'lic  I'uiu'tions  and  authoi-ity  of  an  international  court  of  arl)itration 
aro  clearly  (Expressed  by  Mr.  Evai'ls,  S(H'relary  of  State,  in  a  conuniini- 
catiou  relative  to  the  I'nitiHl  States  and  Si)anish  eoniuiission  of  tSTl, 
which  Ml".  E\arts  (l(>elared  to  hi\  ''an  inde})endent  judicial  tribunal 
possessed  of  all  lh(>  j)()wers  and  endowed  with  all  the  properties  which 
should  distiuiiuish  a  court  of  hi^h  international  juiisdiction,  alike  com- 
petent, in  tiie  jurisdiction  conferred  upon  it,  to  bring  under  judgment 
the  decisions  of  the  local  courts  of  both  nations,  and  beyond  the  com- 
petence of  either  Government  to  interfere  with,  direct,  or  obstruct  its 
deliberation."  He  says  furthermore  that  the  tribunal  had  authority 
"to  tix,  not  only  the  general  scope  of  evidence  and  argument  it  will 
entertain  in  the  discussion  both  of  the  merits  of  each  claim  and  of  the 
claimant's  American  citizenship,  but  to  pass  upon  every  otter  of  evi- 
dence bearing  upon  either  issue  that  may  be  made  before  it." 

In  Medina's  case,  decided  by  the  United  States  and  Costa  Rican  com- 
mission of  1860,  Bertinatti,  umpire,  says: 

An  act  of  naturalization,  be  it  made  by  a  judge  ex  parte  in  the  exercise  of  his  vol- 
untario  jurisdictio,  or  be  it  the  result  of  a  decree  of  a  king  bearing  an  administrative 
character,  in  either  case  its  value,  on  the  point  of  evidence  before  an  international 
commission,  can  only  be  that  of  an  element  of  proof,  subject  to  be  examined  accord- 
ing to  the  principle  locus  regit  actum,  both  intrinsically  and  extrinsically,  in  order 
to  be  admitted  or  rejected  according  to  the  general  principles  in  such  a  matter. 
******* 

The  certificates  exhibited  by  them  (the  claimants),  being  made  in  due  form,  have 
for  themselves  the  presumption  of  truth;  but  when  it  Ijecomes  evident  that  the  state- 
ments therein  contained  are  incorrect  the  presumption  of  truth  must  yield  to  truth 
itself.    -  (3  Moore's  Int.  Arb.,  2587.) 

Whatever  may  be  the  conclusive  force  of  judgments  of  naturaliza- 
tion under  the  municipal  laws  of  the  country  in  which  they  are  gi-anted, 
international  tribunals,  such  as  this  Commission,  have  claimed  and 
exercised  the  right  to  determine  for  themselves  the  citizenship  of 
claimants  from  all  the  facts  presented.  (Medina's  case,  supra ;  Laurent's 
case,  3  Moore's  Int.  Arb.,  2671;  Lizardi's  case,  3  Moore's  Int.  Arb., 
2589;  Kuhnagel's  case,  3  Moore's  Int.  Arb.,  2617;  Angarica's  case,  3 
Moore's  Int.  Arb.,  2621;  Criado's  case,  3  Moore's  Int.  Arb.,  2621.) 

The  present  Commission  is  charged  with  the  duty  of  examining  and 
deciding  all  claims  owned  hy  citizens  of  the  l/^/iited  States  ngamf^t  the 
Republic  of  Venezuela.  It  is  absolutely  essential  to  its  jurisdiction 
over  any  claim  presented  to  it  to  determine  at  the  outset  the  American 
citizenship  of  the  claimant,  and  the  fact  of  such  citizenship,  like  any 
other  fact,  must  be  proved  to  the  satisfaction  of  the  Commission  or 
jurisdiction  must  be  held  wanting. 

Notwithstanding  the  certificates  of  naturalization  introduced  in  evi 
dence  here,  the  Commission  is  not  satisfied  that  Elias  Assad  Flutie  is 
a  citizen  of  the  United  States,  or  that  it  has  under  the  protocol  any 
jurisdiction  over  these  two  claims. 

Section  2170  of  the  Revised  Statutes  of  the  United  States  provides 
that: 

No  alien  shall  be  admitted  to  become  a  citizen  who  has  not  for  the  continued  term 
of  five  years  next  preceding  his  admission  resided  within  the  United  States. 

This  law  is  not  construed  to  require  the  uninterrupted  presence 
within  the  United  States  of  the  candidate  for  citizenshij)  during  the 
entire  probationary  period.  Transient  absence  for  pleasure  or  busi- 
ness with  the  intention  of  returning  does  not  interrupt  the  statutory 
period  or  preclude  a  lawful  naturalization  at  the  expiration  thereof. 


REPOKT  OF  ROBERT  C.  MORRIS.  151 

But  the  law  does  require  the  candidate  to  ""  reside"  within  the  United 
States  for  the  continued  term  of  tive  _years  next  preceding-  his  admission. 

No  alien  who  is  domiciled  in  a  foreign  country  inmiediately  prior  to 
and  at  the  time  he  applies  to  be  admitted  to  citizenship  can  be  lawfully 
naturalized  a  citizen  of  the  United  States. 

Domicile  is  residence  at  a  particular  place  accompanied  with  an 
intention  to  remain  there;  it  is  a  residence  accepted  as  a  final  abode. 
(Webster.)  Domicile  in  Venezuela  during  a  certain  period  precludes 
for  the  same  period  residence -in  the  United  States  within  the  meaning 
and  intent  of  the  statutes  of  naturalization. 

A  man\s  domicile,  as  involving  intent,  is  often  difficult  of  ascertain- 
ment. But  publicists  and  courts  regard  certain  criteria  as  establishing 
the  fact. 

If  a  person  goes  to  a  country  with  the  intention  of  setting  up  in  business,  he 
acquires  a  domicile  as  soon  as  he  establishes  himself,  because  the  conduct  of  a  fixed 
business  necessarily  implies  an  intention  to  stay  permanently.     ( Hall,  Int.  Law,  517. ) 

If  a  person  places  his  wife  and  family  and  "household  goods"  in  a  particular 
place,  the  presumption  of  the  abandonment  of  a  former  domicile  and  of  the  acquisi- 
tion of  a  new  one  is  very  strong.      (4  Phillimore's  Int.  Law,  173.) 

If  a  married  man  has  his  family  fixed  in  one  place  and  he  does  business  in  another, 
the  former  is  considered  the  place  of  his  domicile.  (Story,  Conflict  of  Laws,  Ch. 
Ill,  sec.  46. ) 

The  residence  of  a  man  [says  Judge  Daly]  is  the  place  where  he  abides  with 
his  family,  or  abides  himself,  making  it  the  chief  seat  of  his  affairs  and  interests. 
(Quoted  in  Medina's  case,  supra. ) 

The  apparent  or  avowed  intention  of  constant  residence,  not  the  manner  of  it, 
constitutes  the  domicile.      (Guier  v.  O'Daniel,  1  Binney,  349.) 

Intention  may  be  shown  more  satisfactorilv  by  acts  than  declarations.  (Shelton 
t;.  Tiffin,  6  How.,  U.  S.,  163.) 

These  are  the  criteria  of  domicile,  recognized  by  both  international 
and  municipal  law.  Concurrently  existing  in  this  case,  they  fix  the 
domicile  of  Elias  A.  Flutie  prior  to  and  on  July  2,  1900,  in  the  Republic 
of  Venezuela. 

The  evidence  bearing  upon  the  residence  of  Elias  A.  Flutie  is  the 
following: 

Elias  A.  Flutie  states  that  he  is  a  native  of  Syria,  27  years  of  age 
(in  1903);  that  he  came  to  the  United  States  in  1892;  that  during  the 
years  1S99,  1900,  and  1901,  his  occupation  was  that  of  a  merchant,  and 
his  residence  was  in  tlie  city  of  Brooklyn  in  the  State  of  New  York, 
where  he  had  resided  for  several  years  past;  that  about  the  year  1899 
he  went  temporarily  to  the  city  of  Yrapa  in  Venezuela  to  establish  a 
})usiness  as  a  general  merchant,  returning  shortly  afterwards  to  the 
United  States,  leaving  said  business  in  charge  of  his  brothers;  that  he 
had  temporarily  left  his  family  in  Yrapa  in  charge  of  his  brothers, 
and  visited  them  from  time  to  time  for  a  greater  or  less  period;  that 
he  made  frequent  trips  to  Yrapa  to  supervise  the  management  of  his 
business,  returning  each  time  to  his  home  in  Brooklyn;  that  he  was 
naturalized  a  citizen  of  the  United  States  on  July  2,  1900;  that  in 
August,  1900,  he  returned  to  Venezuela,  where  he  remained  until 
compelled  to  flee  from  the  country  in  fJune,  1901. 

In  Flutie's  testimony  there  is  no  intimation  that  he  was  ever  in 
Venezuela  prior  to  "about  1899,"  when  he  went  there  '-temporarily" 
to  establish  the  business  at  Yrapa,  where  he  "temporarily"  left  his 
family  whom  he  visited  from  time  to  time  "  for  a  greater  or  less 
period."  Indefiniteness,  evasion,  a  manifest  shaping  of  his  statements 
to  accord  with  the  supposed  necessities  of  his  case  and  a  suppression 


152  REPORT  OP  ROBERT  C.  MORRIS. 

ol"  luaterial  fiu-ts  fhanu'(»>rizo  all  his  tcstiinony  on  tho  suljjcct  of  hi.s 
residonro  aiul  discredit  it. 

F.niilia  Alsoiis  Kliitio  testifies  (on  jNIarcli  2.^,  I'to;})  that  she  had 
known  Ellas  A.  Fliitic  for  seven  and  one-half  years.  Her  aequaintance 
with  him  must  have  heo'un,  therefore,  about  September,  181*5.  She 
swears  that  she  was  married  to  him  by  the  civil  authorities  of  Vene- 
zuela on  the  2r)tli  day  of  April,  189(5,  and  that  she  was  married  to  him 
again  accord ino-  to  the  rites  of  the  Roman  Catholic  Church  on  July 
22,  1897,  at  Carupano,  Venezuela;  that  during-  part  of  the  year  1899 
she  resided  at  Carupano,  Venezuela,  going  from  Carupano  to  Yrapa, 
Venezuela,  in  the  latter  part  of  that  year,  w^here  she  resided  until 
June,  1901;  that  in  l)oth  Carupano  and  Yrapa  she  was  engaged  in  the 
sale  of  laces,  J:'ancy  needlework,  and  fancy  goods. 

Abraham  A.  Flutie  testifies  that  he  has  known  Mrs.  Emilia  Flutie 
since  July,  1897,  when  she  was  married  to  his  brother  by  Father  Pedro 
Ramos,  and  that  the  business  at  Yrapa  was  established  in  July  or 
August,  1899. 

f Julian  A.  Flutie  testifies  that  the  business  at  Yrapa  was  conducted 
under  the  name  of  Flutie  Hermanos,  although  it  belonged  entirely  to 
Elias  A.  Flutie;  that  he  first  met  Mrs.  Emilia  Flutie  on  the  8th  of 
July,  1897,  when  he  was  introduced  to  her  by  his  brother  Elias,  who 
told  him  that  he  had  been  civilly  married  to  her  on  April  25,  1896; 
that  on  July  22, 1897,  his  brother  was  married  to  her  according  to  the 
rites  of  the  Roman  Catholic  Church  at  Carupano,  Venezuela;  that  he 
was  best  man  at  the  w^edding,  and  the  ceremony  was  performed  by 
Rev.  Antonio  Ramos.  Hesa3^s  that  in  June,  1901,  Mrs.  Flutie  became 
so  frightened,  both  for  her  own  safety  and  that  of  her  children,  that 
she  was  forced  to  leave  the  country. 

As  it  does  not  appear  in  evidence  that  Mrs.  Flutie  was  ever  in  the 
United  States  until  she  went  there  with  her  husband  in  1901,  it  is 
apparent  that  Elias  A.  Flutie  must  have  left  the  United  States  as 
early  as  September,  1895.  It  is  proven  that  he  was  married  in  Vene- 
zuela in  April,  1896,  and  remarried  there  in  July,  1897;  and  b}^  his 
own  statement  he  was  established  in  business  there  in  1899. 

Flutie  claims  that  for  several  j^ears  prior  to  July  2,  1900,  he  resided 
in  the  United  States,  and  that  subsequent  to  about  1899  he  made  fre- 
quent trips  to  Venezuela  to  visit  his  family  for  greater  or  less  periods 
and  to  supervise  the  management  of  his  business,  returning  each  time 
to  his  home  in  Brooklyn. 

The  Commission  is  satisfied  from  all  the  evidence  before  it  in  these 
cases  that  the  reverse  is  true;  that  Flutie  resided  in  Venezuela  from 
at  least  the  fall  of  1895  up  to  Jul}^  or  August,  1899,  at  or  near  Caru- 
pano, and  after  that  time  at  Yrapa;  that  he  may  have  made  trips  to 
the  United  States  and  undoubtedly  did  make  one  there  shortly  before 
July  2,  1900,  returning  to  his  home  and  family  and  business  in  Vene- 
zuela shortly  afterwards — that  is  to  say,  in  August,  1900 — from  which 
time  there  is  neither  allegation  nor  proof  in  the  record,  nor  any  fair 
implication  therefrom,  that  he  ever  intended  voluntarily  to  return  to 
the  United  States. 

Naturalization  in  the  United  States,  without  any  intent  to  reside  permanently 
therein,  but  with  a  view  of  residing  in  another  country,  and  using  such  naturaliza- 
tion to  evade  duties  and  responsibilities  to  which  without  it  he  would  be  subject, 
ought  to  be  treated  by  this  Government  as  fraudulent.  (14  Op.  Atty.  Gen.,  295; 
Wharton  Int.  Law,  Dig.,  sec.  175.) 

The  evidence  presented  in  these  cases  convinces  the  Commission 


REPORT  OF  ROBERT  C.  MORRIS.  153 

that  Elias  A.  Flutie  did  not  "reside"  in  the  United  States  for  the 
continued  term  of  live  rears  or  any  considerable  portion  thereof  prior 
to  the  2d  dav  of  July,  iuOO;  that  the  facts  necessary  to  give  the  court 
jurisdiction  "did  not  exist,  and  therefore  that  the  certiticate  of  naturali- 
zation was  improperl}^  granted. 

It  follows  that  these  claimants  have  no  standing  before  the  Com- 
mission as  citizens  of  the  United  States,  and  their  claims  are  therefore 
dismissed  for  want  of  jurisdiction,  without  prejudice,  however,  to 
their  presentation  in  a  proper  form. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  Amekica  on  behalf  1 

of  Elias  Assed  Flutie,  claimant,  [  ^^   ^^ 

V.  I       *      ' 

The  Republic  of  Venezuela.  J 

and 
The  United  States  of  America  on  behalf  ~ 

of  Emilia  Alsous  Flutie,  claimant,  I  No   14 

'^'  ■  I        '      ' 

The  Republic  of  Venezuela. 

DECISION. 

The  above-entitled  claims  are  hereby  dismissed,  without  prejudice, 
for  want  of  jurisdiction. 

William  E.  Bainbridge, 

Commissioner  on  the  part  of  the  United  States  of  America. 

J.  de  J.  Paul, 
Com/missionefT  on  the  part  of  Venezuela. 

Attest  to  decision: 

Harry  Barge,  President. 

Attest: 

Rudolph  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 
J.  Padron  Uztariz, 

Secretartj  on  the  2)Ci'rt  of  Venezuela. 

Delivered  August  1.  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1908,  betAveen  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  ox  liKHALp] 
of  George  Freeman  Underbill  and  Jennie  I 
Laura  Underbill,  his  wife,  claimants,  \  No.  15. 

V.  I 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

STATEMENT   OF   FACT. 

The  United  States  presents  in  this  case  two  claims  for  damages— one 
in  favor  of  George  Freeman  Underbill,  in  the  amount  of  $282,316.28; 


154  REPORT  OF  ROBERT  C.  MORRIS. 

the  other  hi  favor  of  .lennie  Luuru  Uiiderhill,  his  wife,  in  the  sum  of 
{^lOO.GOO. 

The  ehiimants  are  l)oth  native-born  citizens  of  the  United  States. 

The  t'iainis  of  both  chiiniants  are  nnule  for  daina<^es  for  personal 
injuries,  insults,  abuse,  and  false  imprisonment,  Thechiimof  George 
Freeman  Underbill  also  includes  a  claim  for  property  destroyed  or 
which  he  was  compelled  to  sacriticc  or  abandon  by  reason  of  his  being 
compelled  to  flee  the  countr}'. 

The  facts  out  of  which  both  claims  arise  are  the  same,  and  are  briefly 
as  follows: 

George  Freeman  Underbill  was  a  mechanical  engineer,  residing  at 
the  time  of  the  occurrences  here  complained  of  in  1891  and  thereafter, 
with  his  wnfe,  the  other  claimant,  in  the  city  of  Bolivar,  where  he  was 
operating  a  waterworks  under  a  concession  from  the  Government,  and 
also  had  a  residence  and  machine  shop,  tools,  and  appliances.  The 
residence,  machine  shop,  etc.,  were  his  absolute  property.  The  water- 
works was  a  leased  concession  from  the  Venezuelan  Government. 

On  August  11,  1892,  a  daj^  or  two  after  the  defeat  of  Carrera's 
troops  by  the  revolutionists  under  the  command  of  General  Hernan- 
des,  a  large  number  of  officials  of  the  former  government  were  pre- 
paring to  flee  from  the  city  of  Bolivar,  and  Mr.  Underbill  made 
arrangements  to  have  his  wife  leave  the  city  on  the  same  steamship. 
While  proceeding  to  the  steamship  they  were  attacked  by  a  mob  who 
prevented  their  leaving.  Thej^  were  thereupon  arrested  by  soldiers  of 
the  army  of  Hernandes,  brought  back  to  the  city,  confined  in  jail,  and 
subsequently  confined  under  military  guai'd  in  their  own  residence  and 
subjected  to  great  privations  and  hardships  for  an  unusuall}^  long 
space  of  time.  Mrs.  Underbill  was  finall}'^  given  a  passport  and  allowed 
to  leave  Bolivar,  but  Underbill  himself  was  kept  under  surveillance 
and  practical  arrest  until  the  middle  of  October,  1902.  Meanwhile 
both  claimants  had  been  not  only  arrested  and  confined,  but  subjected 
to  personal  indignities  and  hardships  which  are  set  out  at  length  in 
their  memorial.  The  apparent  object  of  retaining  them  in  confine- 
ment was  to  compel  the  release  on  the  part  of  Mr.  Underbill  of  his 
rights  in  his  waterworks  concession  and  a  sale  of  the  same  at  a  purely 
nominal  figure.  This  result  having  been  accomplished,  lie  was  allowed 
to  go.  His  treatment  and  that  of  his  wife,  and  threats  which  had 
been  made,  were  such  as  necessarily  to  compel  nim  to  flee  the  country, 
abandoning  to  destruction  his  residence  and  other  personal  property 
in  Bolivar. 

11. 

The  eindence  clearly  sujyj^orts  the  claims  set  forth  in  the  niernorials. 

There  are  annexed  to  the  memorials  a  large  number  of  matters  of 
documentary  evidence,  as  well  as  evidence  and  depositions  of  various 
witnesses  to  the  transactions  complained  of,  or  some  of  them,  all  sus- 
taining the  complaint. 

Nor  are  the  substantial  facts  in  any  way  denied  by  the  Venezuelan 
Government.  There  is  an  attempt  to  palliate  them  and  charge  that 
the  facts  are  overstated,  and  that  the  action  taken  was  not  so  harsh  or 
arbitrary  as  represented.  This  goes  to  the  degree  merel}^  and  not  to 
the  fact  of  the  wrongs  complained  of.  The  fact  that  these  claimants 
were  arrested  without  warrant  and  detained  under  circumstances  of 


REPORT  OF  ROBERT  C.  MORRIS.  155 

abuse,  hardship,  and  most  arbitraiy  treatment  for  an  unusual  and  ille- 
gal period  of  detention,  without  an}-  charge  being-  made  against  them, 
are  clearly  sustained  by  the  evidence  and  would  seem  to  be  conceded. 

IV. 

Mr.  Underhill  had  not  heen  guilty  of  any  ireach  of  neutrality. 

The  perhaps  incipient  cause  of  the  trouble,  so  far  at  least  as  action 
of  the  mob  of  citizens  of  Bolivar  \\'as  concerned,  was  the  belief  that 
Mr.  Underbill  had  been  taking  an  active  part  in  the  support  of  the 
former  government  of  Venezuela.  This  charge  related  solely  to  his 
having  repaired  certain  vessels  which  were  damaged  and  which  were 
afterwards  made  use  of  by  the  troops  of  the  former  government.  The 
evidence,  both  in  the  statements  of  Mr.  Underhill  and  his  wife^  and  in 
the  documents  accompanying  them,  is,  however,  clear  that  whatever 
Mr.  Underhill  did  in  this  way  was  done  under  compulsion,  duress,  and 
threats  of  arrest  on  the  part  of  the  then  government  of  the  country, 
and  not  voluntarily  done,  or  in  a  way  to  in  any  wise  authorize  the 
conclusion  that  he  was  siding  with  or  aiding  their  side  in  the  pending 
revolution.  Moreover,  it  can  hardly  be  said  that  a  mechanic  who,  at 
the  instance  of  a  regularly  constituted  government  then  in  power, 
should  for  pay  perform  work  toward  repairing  the  machinery  of  a 
steamboat  owned  by  the  Government,  could  be  regarded  as  guilty  of 
a  violation  of  his  neutrality. 

V. 

The  acts  complained  of  toei^e  dmie  either  under  the  direct  authority  of 
the  gove)'nment  which  was  then  heing  established  and  thereafter  hecame 
estaUished  as  the  Goveimme^it  of  Venezuela^  or  were  ratified  and  adopted 
hy  the  officials  of  that  Government. 

It  might  perhaps  be  contended  that  the  Government  of  Venezuela 
was  not  responsible  for  the  acts  of  the  mob  of  citizens  who  followed 
the  claimants  and  prevented  their  leaving  the  city  of  Bolivar,  if  that 
Government  had  promptly  released  them  and  protected  them  from  the 
mob,  but  instead  of  doing  so,  General  Hernandes  took  possession  of 
them  from  the  mob  as  prisoners,  not  for  the  purpose  of  releasing  them, 
but  for  the  purpose  of  retaining  them  in  custody,  thereby  ratifying 
instead  of  disaffirming  the  actions  of  the  mob,  or  in  any  way  protect- 
ing them  against  it.  The  acts  of  that  mob  must  therefore  be  regarded 
as^the  acts  of  the  Government,  either  directly  authorized  or  subse- 
quently assumed,  and  for  which,  in  either  case,  they  are  equally 
responsible.  The  subsequent  acts  complained  of  were  done  either 
directly  by  or  under  the  direct  orders  and  supervision  of  General 
Hernandes  himself. 

For  all  such  illegal  acts  the  Government  of  Venezuela  is  therefore 
directly  responsible. 

An  award  should  be  made  in  favor  of  each  claimant  for  the  damages 
arising  from  the  false  arrest,  imprisonment.,  and  unlawful  detention, 
and  for  the  2>ersonal  injuries,  insults,  and  abuse  to  which  they  vjere 
subjected. 

So  far  as  concerns  this  part  of  the  claim  of  Mr.  Underhill  and  the 
corresponding  claim  of  his  wife,  which  is  all  the  claim  in  the  latter 


15G  REPORT  OF  ROBERT  O.  MORRIS. 

case,  there  can  be  no  (Question  that  tlio  Venezuelan  Government  is 
responsible  for  the  damages  resultiii<»'  from  the  cause  complained  of. 

The  proposition  of  international  law  as  to  the  liability  of  a  no\crn- 
iient  iji  such  a  case  is  ciearl\'  established — that  a  j^ovei'nmcnt  is  liable 
jo  foreign  citizens  for  damages  arising  from  the  arrest  without  cause, 
for  an  undue  and  unlawful  detention,  even  where  the  arrest  was  with 
probable  cause,  and  for  abusive,  harsh,  and  arbitrary  treatment  to 
which  the  prisoners  were  subjected,  whether  the  arrest  was  with  cause 
or  not.  (See  the  decided  cases  upon  this  subject  collected  in  the  fourth 
volume  of  Moore's  Work  on  International  Law,  p.  3235  et  seq.) 

VII. 

Ati  award  should  also  be  made  in  favor  of  George  Freeman  Underhill 
for  the  value  <f  all  his  property  arid  jproperty  rights  at  Bolivar. 

The  case  is,  on  the  evidence,  clearly  one  in  which  the  claimant  was 
compelled  to  flee  the  country  in  order  to  save  himself  from  further 
personal  injuries  and  pro])able  loss  of  life. 

The  rule  of  international  law  is  clear  that  in  such  a  case,  which  is  in 
substance  and  etiect  equivalent  to  an  expulsion  from  the  country,  the 
expelling  government  is  liable  for  damages  to  the  full  value  of  the 
property  so  necessarily  abandoned.  (See  4th  Moore's  International 
Arbitration,  p.  3333  et  seq.) 

The  circumstances  of  this  case  show  a  clear  intention  on  the  part  of 
the  Venezuelan  authorities  to  obtain  the  possession  of  claimant's  prop- 
erty. The  attempt  was  made  to  obtain  this  by  his  consent,  and  the 
obtaining  of  a  documentary  transfer  as  to  his  waterworks  concession 
thus  taken  was  successful,  but  it  appears  that  his  illegal  and  unlawful 
detention  for  so  long  a  period  of  time  in  practical  imprisonment  was 
clearly  for  the  purpose  of  bringing  about  a  relinquishment  of  his 
property  rights.  That  Mr.  Underhill  left  voluntarily — was,  in  fact, 
urged  to  go — makes  no  diti'erence  in  the  case.  The  expulsion  arose  on 
the  acts  of  the  Venezuelan  authorities  in  subjecting  him  to  such  treat- 
ment and  creating  a  condition  of  such  danger  and  imminent  loss  of 
life  as  to  amount  to  a  practical  expulsion  from  the  country. 

Nor  does  the  fact  that  under  such  duress  the  claimant  signed  papers 
relinquishing  his  waterworks  concession  alter  his  right  to  relief.  It 
clearly  appears  that  this  was  obtained  under  circumstances  amounting 
to  the  greatest  conceivable  duress,  nor  can  the  recital  of  apparent  con- 
sideration and  voluntary  action  in  the  document  itself  have  any  weight 
as  against  the  clear  facts  showing  the  duress.  These  statements  were 
necessarily  extorted  under  the  same  duress. 

VIII. 

An  award  should  he  made  in  favor  of  the  claimant  for  thefidl  amount 
claimed. 

The  case  presents  unusual  circumstances  of  a  harsh  and  arbitrary 
action  on  the  part  of  the  authorities  of  the  Venezuelan  Government,  both 
in  the  making  of  a  false  arrest  and  an  unusual  and  unlawful  detention 
and  imprisonment,  in  the  indignities  to  which  the  claimants  were  sub- 
jected, and  in  the  manner  in  which  their  property  was  taken  from 


EEPOET  OF  EGBERT  C.  MOERIS.  157 

them  and  they  were  compelled,  in  order  to  avoid  absolute  danger  to 
life,  to  flee  the  country,  abandoning-  their  property.     The  claimants 
are  each  clearly  entitled  to  damages  for  these  unlawful  acts,  and  an 
award  should  be  made  for  the  full  amount  claimed. 
Respectfull}'  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

.^^Translation.] 

Claim  No.  15.     George  F.  Underhill  and  Jennie  Laura  Underbill. 

ANSWER. 

HonoraJble  Memhers  of  the  Venezuelan- Americaoi  Mixed  Commission: 

The  undersigned,  agent  of  the  Goyerument  of  the  United  States  of 
Venezuela,  has  studied  the  double  claim  presented  by  the  American 
citizens,  George  F.  Underhill  and  his  wife  Laura  Underhill,  arising 
out  of  the  transactions  which  are  set  forth  in  the  brief  of  the  honora- 
ble agent  of  the  United  States  on  both  cases. 

The  undersigned  considers  that  such  claims  are,  from  eyery  point 
of  yiew  unfounded,  unjust,  and  inconsiderate,  and  that  the  best  argu- 
ment that  can  be  made  in  fayor  if  this  assertion  is  set  out  in  the  report 
that  the  captain  of  the  war  vessel  of  the  United  States,  the  Kearsarge 
made  to  the  Hear- Admiral  Walker,  chief  of  the  North  Atlantic  Naval 
Station,  as  a  result  of  the  mission  with  which  he  was  charged  of  inves- 
tigating the  occurrences  in  the  Ciudad  Bolivar  which  happened  to  the 
claimants  during  the  year  1892. 

It  appears  from  this  report,  which  undoubtedlj^  represents  an 
impartial  and  honorable  judgment  that  Mr.  Underhill  at  the  date  of 
the  occurrences  had  participated  directl}'  and  with  great  interest  in 
the  acts  of  the  Government  of  the  State  of  Bolivar  against  the  revo- 
lution called  "  Legalista,"  which  afterwards  became  the  Government; 
that  as  a  consequence  of  this  participation,  contrary  to  the  duty  of 
neutralit}^  which  foreigners  ought  to  respect  in  civil  strifes,  deliber- 
ately entered  into  by  him  and  confirmed  by  the  communications  of  liis 
excellenc}"  William  L.  Scruggs,  minister  resident  of  the  United  States 
at  Caracas  to  his  Government;  that  he  had  brought  upon  himself  the 
odium  of  the  citizenship  of  Bolivar;  that  it  was  charged  among  other 
things  that  he  had  equipped  General  Carrera  to  resist  the  progress  of 
the  revolution,  thereb}^  giving  rise  to  more  cruel  and  blood}'  ravages; 
that  after  the  victory  of  the  Legalista  forces  over  Carrera,  Mr. 
Undoriiill  and  his  wife,  with  manifest  imprudence,  attempted  to  a])an- 
don  the  city  and  were  assaultcnl  by  a  mol)  which  prevented  them  from 
accomplishing  their  journey,  and  lastly  Underhill  forced  by  the  cir- 
cumstances in  which  he  had  placed  himself,  resolved  to  sell  his  prop- 
erties and  return  to  the  United  States,  as  he  in  efl'ect  did. 

After  a  careful  examination  of  all  the  transactions,  it  is  impossible 
to  conceive  upon  what  grounds  the  claimants  demand  from  Venezuela 
the  payment  of  such  exaggerated  sums  of  money  as  they  claim. 

It  is  a  pi'inciple  of  international  law  of  which  the  most  noted  pub- 
licists have  treated  that  a  government  can  not  be  responsible  for  the 
acts  of  an  infuriated  mob,  populace,  or  crowd,  when  it  has  not  been 
the  efficient  cause  of   them   nor  capable  of   suppressing  them.     The 


158  REPORT  OF  ROBERT  C.    MORRIS. 

insults,  tln-e:its,  and  oilier  outraoos  of  which  the  ehiiniiints  complain, 
althouoh  they  were  ])i-oven  could  not  allect  the  respon.sibility  of  Vene- 
zuela, whose"  authorities  could  not  have  prevented  them  under  the 
extraordinary  circumstances  in  which  they  were  enacted. 

The  second  around  taken  has  no  greater  juridical  foundation  than 
the  lirst:  The  sale  of  his  properties  which  Mr.  Underhill  niade  was  a 
voluntary  act  on  his  part,  and  in  no  way  the  result  of  intimidation  or 
violence,*  circumstances  which  it  is  indispensal)le  to  prove  in  order  to 
support  the  claim  in  that  respect;  on  the  contrary  from  the  report  to 
which  the  undersigned  has  been  referring  it  appears  that  said  sale  was 
accepted  by  Mr.  Underhill  almost  with  joy. 

The  tribunal  ought  to  bear  in  mind  that  Underhill  was  not  and  had 
never  been  the  owner  of  the  waterworks  of  Giudad  Bolivar,  which 
had  been  constructed  at  the  cost  of  the  National  Government,  that  of 
the  State  and  the  municipality,  the  cost  to  the  latter  being  about 
248,000  bolivars;  he  was  nothing  but  a  simple  lessee  of  the  water 
supply,  and  the  transfer  of  the  rights  which  as  such  he  had  for  the 
sum  of  $6,000,  which  he  received  in  cash  from  the  firm  of  Tomasi  & 
Co.,  was  a  transaction  more  than  advantageous  at  that  time. 

The  undersigned  has  taken  the  liberty  of  making  the  foregoing 
explanation,  because  in  the  report  of  Commander  Crowninshield  he 
appears  to  attribute  to  Underhill  the  ownership  of  said  waterworks.  _ 

It  should  be  noted  that  said  commander,  after  the  termination  of  his 
mission,  was  so  pleased  with  the  conduct  observed  l\y  Gen.  Jose  Man- 
uel Hernandez,  who  is  accused  of  having  committed  the  acts  out  of 
which  the  claim  arises,  that  he  complimented  with  satisfaction  and 
offered  him  the  boat  which  was  under  his  orders  to  conduct  him  to  the 
port  of  La  Guaira.  Besides  the  United  States  Government,  which 
at  that  time  refused  the  intervention  which  Underhill  asked,  has  never 
presented  this  claim  to  the  Venezuelan  foreign  ^pffice.  This  is  the 
best  proof  of  its  injustice,  no  doul^t. 

As  a  means  of  illustration  and  also  that  it  may  have  its  legal  effect 
the  undersigned  produces  the  original  of  a  document  properly  authen- 
ticated and  legalized,  a  succinct  relation  by  the  same  General  Her- 
nandez, in  which  will  ])e  found  set  out  with  admirable  fidelity,  the 
history  of  the  affair.  The  declaration  of  a  witness,  holding  a  position 
such  as  his,  has  a  moral  effect  which  can  not  be  disputed. 

Both  clanus  should  be  declared  inadmissible. 

Caracas,  July  9,  1903. 

(Signed)  F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  George  Freeman  Underhill  and  Jennie 
Laura  Underhill,  claimants, 

V. 

The  Republic  of  Venezuela. 


No.  15. 


REPLICATION  ON  BEHAIiF  OF  THE  UNITED  STATES. 

In  replication  to  the  answer  of  the  Venezuelan  Government  in  the 
above-entitled  case  the  United  States  su])mits  herewith  a  brief  pre- 


REPORT  OF  ROBERT  C.  MORRIS.  159 

pared  h}"  the  attorne3's  for  the  claimants  which  covers  the  case  in 
detail.  The  brief  is  in  printed  form  and  is  accompanied  with  copies 
of  the  exhibits  referred  to  therein,  except  eight  photographs  marked, 
respectively.  Exhibits  1  to  8,  inclusive,  copies  of  which  are  also  placed 
in  evidence  before  this  Commission. 

The  honorable  agent  of  Venezuela,  with  his  answer,  has  submitted 
a  deposition  of  Gen.  Jose  Manuel  Hernandez,  taken  in  this  cit}^  on  the 
loth  instant,  and  lays  great  stress  on  the  statement  of  facts  therein 
contained. 

We  respectfully  submit  that  General  Hernandez,  notwithstanding 
his  honor,  integrity,  and  high  position,  has  been  so  intimately  con- 
nected with  the  acts  out  of  which  this  claim  arises  that  he  can  scarcely 
])e  expected  to  be  able  to  make  an  unbiased  statement  in  regard  to  it. 

The  facts  in  this  case  are  amply  snpported  by  evidence  procured  at 
the  time  of  or  immediately  after  their  occurrence,  and  an  award  should 
be  made  in  favor  of  the  claimants  as  prayed  in  the  memorials. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The   United  States  and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  George  Freeman  Underbill  and  Jennie 
Laura  Underbill,  claimants,  [  No.  15. 

The  Republic  of  Venezuela. 

Bainbridge,  Commim'honer : 

I  am  unable  to  agree  with  my  honorable  colleague  in  regard  to  this 
claim. 

At  the  time  of  the  alleged  transfer  of  the  waterworks  Underbill  was 
not,  in  m}^  judgment,  enjo^nng  that  freedom  from  restraint  and  equality 
of  position  as  a  contracting  party  which  are  necessary  to  give  validity 
to  every  contract.  Furthermore,  it  appears  to  me  that  Mrs.  Underbill 
is  entitled  in  propria  persona  to  an  award  for  her  unlawful  detention. 

As  this  claim  nuist  go  to  the  umpire,  however,  it  is  unnecessary  to 
discuss  in  detail  the  evidence  upon  which  the  foregoing  opinion  is  based. 

The   United   States  and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  Jenny  Laura  Underbill,  per  se,  and  as  ad- 
ministratrix of  the  estate  of  George  Freeman 
Underbill,  deceased,  claimant. 

The  Republic  of  Venezuela. 


No.  15. 


Doctor  Paul,  ( '<>nniilssio7ier: 

Both  of  these  cases  represent  a  claim  for  an  indemnity  amounting  to 
$j};->2,;3l(;.28  for  personal  injuries,  insults,  abuses,  and  unjust  imprison- 
ment.    The  claim  of  George  Freeman  Underbill  includes  an  indemnity 


1(>0  REPORT  OK  ROBERT  C.  MORRIS. 

for  having  been  forced  to  sacrifice,  or  abandon,  a  property,  having 
been  obliged  to  leave  the  phice  of  liis  residence. 

Georoe  Freeman  Underhill  dii^d  in  the  city  of  Habana,  Cuba,  on  the 
26th  of  "October,  11)01,  and  lii.s  widow,  Jenliy  Laura  Underhill,  pre- 
sented, on  the  17th  of  June  of  this  year,  to  the  Department  of  State  in 
Washington,  a  supi)lementary  memorial  as  administratrix  of  the  estate 
of  her  deceased  husl)and.  altiiough  it  is  not  proven  that  she  had  obtained 
from  the  surrogate  court  for  the  comity  of  New  York,  State  of  New 
York,  the  appointment  to  said  charge. 

UnderhilFs  death  put  an  end  to  any  claim  that  could  arise  from  per- 
sonal injuries,  insults,  or  other  oti'enses,  becsiuse  these  facts  required, 
to  serve  as  a  reason  for  an  indemnity,  to  be  preceded  by  the  conse- 
quential trial  for  responsibility  against  the  perpetrator  of  said  oliense, 
and  Underhill,  as  it  is  proven",  limited  himself  in  his  lifetime  to  enter 


of  such  nature  as  to  be  properly  brought  within  the  jurisdiction  of  the 
United  States  courts.  This  last  judgment  of  the  Supreme  Court  took 
place  seven  years  before  Underbill's  death,  and  during  all  those  years 
he  never  tried  to  enter  before  the  Venezuelan  courts  any  action  of 
responsibility  for  the  alleged  personal  offenses,  thus  perishing  all  rights 
of  civil  action  with  his  own  death. 

Besides  these  considerations,  it  appears,  as  evidently  proven,  that 
Underhill  never  was  sul)jected  to  any  personal  ill  treatment,  nor  to 
any  imprisonment  from  the  moment  of  the  takingof  the  city  of  Boli- 
var bv  General  Hernandez,  as  chief  of  the  revolutionary  forces  called 
"  Legalista,"  until  UnderhilFs  departure  for  Trinidad.  The  facts  men- 
tioned by  Underhill  in  his  memorial  addressed  to  the  Department  of 
State,  and  which  facts  took  place  on  the  11th  of  August,  1892,  in  refer- 
ence to  his  wife  and  himself,  only  prove  that  there  existed  an  excited 
feeling  of  the  people  of  Ciudad  Bolivar  who  tried  to  prevent  the  sail- 
ing of  the  Underbills,  husband  and  wife,  on  the  steamer  El  Callao^ 
with  the  chiefs  of  the  party  vanquished  at  the  battle  of  Buena  Vista 
on  the  previous  day,  and  while  there  was  not  in  the  city  any  regularly 
established  authority. 

It  is  not  true,  as  it  is  asserted  by  the  memorialist,  that,  in  conse- 
quence of  said  happenings,  he  was  put  in  prison  with  his  wife,  as  from 
his  own  statement  and  those  of  the  witnesses  produced  by  him,  it 
appears  that  from  the  wharf  the  Underbills,  husband  and  wife,  went 
to  their  hotel,  and  stayed  in  it  until  their  departure  from  Ciudad 
Bolivar. 

The  report  made  by  the  commander  of  the  United  States  man-of-war 
Kearmrge.,  Mr.  A.  T."  Crowinshield,  and  addressed  to  Kear- Admiral  J. 
G.  Walker,  dated  at  Trinidad  on  the  18th  of  November,  1892,  after 
having  obtained  from  the  United  States  consul  at  Ciudad  Boliver  and 
from  other  respectable  gentlemen  of  the  same  city,  all  named  ])y  the 
commander  in  his  report,  all  the  necessary  information  to  arrive  at  the 
truth  of  what  had  occurred  at  Ciudad  Bolivar  to  the  Underbills,  very 
clearly  says  that  far  from  having  the  Underbills  suffered  any  humili- 
ating "treatment  of  any  kind  from  General  Hei'nandez  they  were,  on 
the  contrary,  protected  hy  him  from  the  feeling  of  general  hostility 
existing  against  Underhilf  among  all  classes  and  all  citizens  of  Ciu- 
dad Bolivar,  according  to  the  very  words  of  the  commander  of  the 
Kearsarge. 


EEPORT  OF  EGBERT  C.  MORRIS.  161 

This  feeling  was  strengthened  by  the  knowledge  that  Mr.  Underhill  had  enter- 
tained at  his  residence  General  Carreras  and  other  officers  of  the  Government's  army 
the  day  before  their  departure  from  Ciudad  Bolivar,  when  they  went  out  to  meet  the 
revolutionary  forces,  which  were  approaching  the  city  under  the  command  of  Gen- 
eral Hernandez;  [and  further]  I  could  not  find  any  evidence  to  support  the  state- 
ment of  Mr.  Underhill  that  he  was  confined  in  his  own  house  by  orders  of  the  new 
Government,  or  that  guards  were  placed  about  his  residence,  as  he  states,  for  several 
weeks. 

From  August  11  to  September  23  Mr.  Underhill  made  repeated  applications  to 
General  Hernandez  to  leave  Ciudad  Bolivar  by  every  steamer,  but  permission  was 
invariably  refused;  first,  on  the  grouhd  that  it  would  be  unsafe  for  Mr.  Underhill  to 
leave  on  one  of  Mr.  Mathison's  steamers;  second,  that  the  presence  of  Mr.  Under- 
hill was  necessary  in  order  to  operate  the  aqueduct.  A  passport  was,  however, 
offered  to  Mr.  Underhill,  provided  he  would  obtain  some  reliable  merchant  in  Ciudad 
Bolivar  to  give  security  for  his  return,  but  this  proposition  Mr.  Underhill  declined. 

It  must  be  noticed  that  no  mention  is  made  in  this  report  of  the 
commander  of  the  Kearmrge  of  the  complaints  that,  later  on,  Mrs. 
Underhill  has  pretended  to  adduce  in  reference  to  herself  for  ill  treat- 
ment and  unjust  imprisonment  as  a  ground  to  claim  the  sum  of 
$100,000,  but  it  does  appear  as  proven  that  General  Hernandez  did 
offer  to  said  lady  a  passport  for  Trinidad,  which  was  delivered  on  Sep- 
tember 27,  and  she  embarked  on  board  the  steamer  Bolivar  on  the  2d 
of  October  next. 

In  regard  to  the  claim  of  Mr.  Underhill  for  an  indemnity  for  hav- 
ing been  forced  to  sell  his  rights  of  exploitation  of  the  aqueduct  of 
Ciudad  Bolivar,  having  to  leave  the  city,  it  will  be  sufficient  to  read 
the  contents  of  his  letter  of  September  24,  1892,  addressed  by  said 
Underhill  to  Gen.  J.  M.  Hernandez,  in  answer  to  his  official  note.  No. 
278,  in  i-egard  to  the  importance  given  by  that  civil  and  military  chief 
of  the  city  to  the  work  of  putting  in  activity  the  service  of  the  aque- 
duct, to  maintain  the  supply  of  water  to  the  city,  in  accordance  with 
the  contract  entered  into  by  Underhill  with  the  Government.  In  said 
letter  are  found  the  following  expressions: 

On  the  14th  of  July,  when  I  was  obliged  to  cease  pumping,  it  was  my  inten- 
tion to  start  up  again  as  soon  as  the  works  had  become  dry.  But  since  the  occur- 
rence of  the  11th  of  August,  and  the  insults  I  have  received,  and  your  refusal  to  give 
me  a  pas.sport  on  any  steamer  that  has  sailed  from  this  port  during  the  term  of  six 
weeks,  I  have  come  to  the  following  decisive  conclusion  pertaining  to  the  aquaduct: 
I  shall  never  run  the  aqueduct  for  the  citi/  of  Bolivar  again. 

I  left  the  work  in  perfect  order  on  the  14th  day  of  July,  and  so  they  can  be  found 
to-dav,  unless  made  otherwise  by  malicious  hands. 

If  it  is  your  right  to  take  possession  of  that  business,  you  must  know  and  can  act 
accordingly.  All  ijuildings  outside  of  the  pump  house  are  my  private  property.  My 
stock  and  tools  contained  in  the  oflSlce  building  is  also  my  private  property. 

A  few  days  after  the  date  of  this  letter,  on  the  18th  of  October  of 
the  same  year,  Underhill  celebrated  a  contract  of  sale,  in  favor  of  Mr. 
B.  Tomassi,  yielding  to  this  latter  all  his  rights  in  the  aqueduct  of 
Ciudad  Bolivar  for  the  sum  of  6,500  pesos,  which  he  nn^eived  in  cash; 
this  contract  of  sale  appears  as  made  of  his  own  and  free  will. 

It  is  to  be  noted,  as  an  appreciation  of  the  character  of  the.se  facts, 
the  final  part  of  the  judgment  of  the  Supreme  Court  of  the  United 
States  in  the  suit  brought  by  Underhill  against  General  Hernandez: 

We  agree  with  the  circuit  court  of  appeals  that  the  evidence  upon  the  trial  indi- 
cated that  the  purpose  of  the  defendant  in  his  treatment  of  the  plaintiff  was  to  coerce 
the  plaintiff  to  operate  his  waterworks  for  the  benefit  of  the  community  and  revolu- 
tionarv  forces,  [and  that]  it  was  not  sufticient  to  have  warranted  a  finding  by  the 
jury  that  the  defendant  was  actuated  by  malice  or  any  personal  or  private  motive, 
and  we  concur  in  its  disposition  of  the  ruling  below,  the  decree  of  the  circuit  cinirt 
is  affirmed. 

8.  Doc.  151 7,  58-2 11 


1G2  REPORT  OF  ROBERT  C.  MORRIS. 

For  the  above  pointed  voasons  I  lun  of  tho  opinion  (hat  the  claim  of 
tbo  widow  l^ndiM-liil!  por  so.  and  as  administratrix  of  the  estate  of  her 
deceased  husband,  should  be  entii'cly  rejected. 

The    United   States   and   Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  of 
Georoe  Freeman  Underbill  and  Jennie  Laura 
Underbill,  his  wife,  claimants,  \-  Claim  No.  15. 

V. 

T'he  Republic  of  Venezuela. 

The  Umpire. 

A  difference  of  opinion  having  arisen  between  the  Commissioners  of 
the  United  States  of  North  America  and  the  Republic  of  Venezuela, 
this  question  was  duly  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol  as  well 
as  the  documents,  evidence,  and  agreements,  and  likewise  all  the  com- 
numications  made  by  the  two  parties,  and  having  impartially  and  care- 
fully examined  the  same,  has  arrived  at  the  following  decision: 

Whereas  in  this  case  there  are  presented  to  the  Commission  two 
separate  claims:  One  of  George  Freeman  TJnderlilll  for  an  indemnity 
for  personal  injuries,  insults,  abuses,  and  unjust  imprisonment  as  well 
as  for  forced  sacrifice  of  propert3%  and  one  of  Jennie  Laxira  TJnder- 
Jiill  for  damages  for  detention,  these  claims  have  to  be  examined 
separately,  and  maj^  be  separately  decided  upon. 

The  claim  of  George  Freeman  Underbill  arises  out  of  facts  and 
transactions  wdiich  took  place  in  the  months  of  August,  September, 
and  October,  1892. 

Now,  whereas  Underbill  died  on  the  26tb  day  of  October,  1901;  and 

Whereas  the  first  element  necessary  to  establish  a  claim  is  a  claim- 
ant, it  has  to  be  evidenced  by  whom  this  place  as  a  claimant  is  now 
legally  filled;  and 

Whereas,  whatever  may  be  the  law  or  the  opinion  as  to  the  transi- 
tion of  the  right  to  claims  that  arise  from  personal  injuries,  insults,  or 
other  offenses,  it  has  at  all  events  to  be  stated  in  these  cases  as  well  as 
in  cases  of  claims  for  financial  damages  to  whom  this  right  to  (;laim 
was  legall}^  transferred  by  the  claimant's  death. 

Now",  whereas  in  this  case  the  onl}^  person  who  claims  this  right  is 
Jennie  Laura  Underbill,  the  deceased's  widow;  and 

\Vhereas  Jennie  Laura  Underbill  declares  that  she  is  entitled  to 
administrate  upon  her  late  husband's  estate,  but 

Whereas  no  proof  whatever  of  this  statement  is  to  be  found  in  the 
document  laid  before  the  Commission; 

Whereas,  on  the  contrar}",  she  stated  on  the  17th  of  June,  1903,  that 
she  on  that  day  only  "  was  about  to  make  application  to  the  surrogates' 
court  of  the  county, of  New  York,  State  of  New  York,  for  letters  of 
administration  thereon,"  while  up  to  this  day  (October,  1903)  no  evi- 
dence as  to  the  result  of  this  application  has  reached  the  Commission; 
and 

Whereas  it  does  not  appear  whether  claimant  at  his  death  left  a  last 
will  or  not;  whereas,  at  all  events,  nothing  about  the  contents  of  such 
a  last  will,  if  existing,  is  known  to  the  Commission;  and 


REPORT  OF  ROBERT  C.  MORRIS.  163 

Whereas  it  is  merely  stated  in  the  exhibit  that  Underhill  married 
in  1886,  and  that  in  that  year  his  wife  went  with  him  to  Ciudad  Boli- 
var, but  not  where  they  married  or  under  which  law  or  on  what  con- 
ditions, the  Commission  has  no  opportunity  to  investigate  and  testify 
which  right  might  result  for  UnderhilFs  widow  out  of  the  fact  of  this 
previous  marriage;  while  out  of  the  declaration  sworn  to  by  Jennie 
Laura  Underhill  on  the  22d  of  November,  1898,  that  at  that  date  and 
at  the  time  of  its  origin  the  entire  amount  of  her  claim  belonged  solely 
and  absolutely  to  her,  it  seeflis  to  appear  that  during  the  marriage 
there  was  no  community  of  financial  interests  whatever  established  by 
law  or  by  acts  between  Underhill  (now  deceased)  and  his  (then)  wife, 
Jennie  Laura  Underhill. 

Whereas,  therefore,  no  evidence  exists  for  the  rig-hts  of  Jennie  Laura 
Underhill  to  appear  as  a  claimant  in  the  place  of  her  deceased  hus- 
band; and 

Whereas,  as  it  was  said  before,  no  one  else  claims  this  right  before 
the  Commission,  the  claims  of  George  Preeman  Underhill  have  to  be 
dismissed  for  want  of  a  claimant. 

Before  the  Mixed  Commission  under  the  protocol  of  February  IT, 

1903,  between  the  United  States  of  America  and 

the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 

of  George  Freeman  Underhill,  claimant,      I  -^^   ^g 

V.  I         '        ' 

The  Republic  of  Venezuela. 

MEMORANDUM  ON  BEHALF  OF  CLAIMANT. 

Jennie  Laura  Underhill,  administratrix  of  George  Freeman  Under- 
hill, a  claimant  above  named,  desires  to  submit  to  the  honorable  Com- 
mission the  following  considerations: 

The  umpire  herein  has  found  that  no  claimant  representing  George 
Freeman  Underhill  was  before  the  Commission,  for  the  reason  that 
your  memorialist  had  not  submitted  to  the  Commission  legal  evidence 
of  her  appointment  as  administratrix  of  said  George  Freeman  Underhill. 
The  claimant  was  advised  that  such  appointment  was  not  necessary 
except  in  case  of  award,  and  that  under  article  1  of  the  protocol 
herein,  such  omission  would  be  oneonl}-  of  a  technical  nature  and  that 
the  said  provision  that  claims  would  be  decided  on  a  basis  of  absolute 
equity,  without  regard  to  objections  of  a  technical  nature,  would  cover 
the  conditions  of  her  case. 

She  now  submits  letters  of  administration  regularly  granted  to  her- 
self as  administratrix  of  the  estate  of  said  George  Freeman  Underhill, 
deceased,  by  the  surrogates'  court  in  the  county  of  Kings,  in  the  State 
of  New  York,  and  asks  that  the  matter  be  reconsidered  by  the  umpire. 

Jennie  Laura  Underhill, 
As  Administrdtrif  of  George  Free^iian  Underhill. 
By  Patterson  &  Shaw, 

Counsel. 
Presented  by — 

Robt.  C.  Morris, 

Agei^  t  of  the  United  States. 


I(i4  REPORT  OF  ROBERT  C.  MORRIS. 

Before  the  Mixed  Commission  under  the  protocol  of  February  17, 

1903,  between  the  United  States  of  America  and 

the  Republic  of  Venezuela. 


The   United   States  of  America  on  behalf 
of  Jennie  Laura  Underbill,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  15. 


MEMORANDUM  ON  BEHALF  OF  CLAIMANT. 

Jennie  Laura  Underbill,  the  claimant  above  named,  desires  to  sub- 
mit to  the  honorable  Commission  the  following  considerations: 

The  umpire  herein,  in  deciding-  the  claim  of  George  Freeman  Under- 
bill, of  whom  the  present  claimant  is  administratrix,  did  not  pass 
upon  the  claim  of  your  claimant  herein.  Your  claimant  therefore 
respectfully  requests  that  her  own  claim,  which  is  one  entirely  distinct 
and  separate  from  that  of  her  late  husband,  be  considered  separately 
and  upon  its  own  merits. 

Jennie  Laura  Underhill, 
By  Patterson  &  Shaw,  Counsel. 
Presented  by — 

Robert  C.  Morris, 

Agent  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of  George  Freeman  Underhill  and  Jennie  | 
Laura  Underhill,  his  wife,  claimants,  [-Claim  No.  J5. 

V. 

The  Republic  of  Venezuela. 

decision  and  award. 

Opinion  by  Doctor  Barge,  umpire. 

The  umpire  allows  the  claimant,  Jennie  Laura  Underbill,  the  sum 
of  $3,000  United  States  gold. 

The  claim  of  George  Freeman  Underhill  is  dismissed. 
November  28,  1903. 

The  United   States  and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


The  United   States  of  America  on  behalf 

of  Jennie  Laura  Underhill,  claimant,  [at      -.  k 

V.  ^    o.       . 

The  Republic  of  Venezuela.  J 


The  Umpire. 

A  difference  of  opinion  having  arisen  between  the  (yommissioners  of 
the  United  States  of  America  and  the  United  States  of  Venezuela,  this 
case  was  duly  referred  to  the  umpire. 


REPORT   OF   ROBERT   C.  MORRIS.  165 

The  umpire  having  taken  fully  into  consideration  the  protocol  and 
also  the  documents,  evidence,  and  arguments  and  likewise  all  the  com- 
munications made  by  the  parties  and  having  impartially  and  carefully 
examined  the  same,  has  arrived  at  the  following  decision: 

Whereas  Jennie  Laura  Underhill,  on  or  about  the  23d  day  of  Novem- 
ber, 1898,  filed  with  the  Department  of  State  of  the  United  States  of 
America  a  memorial  whereby  she  claimed  damages  against  the  Govern 
ment  of  the  United  States  of  Venezuela  in  the  sum  of  $100,00i»  for 
facts  that  had  occurred  in  1892,  which  claim,  however,  was  never  pre- 
sented by  the  Department  of  State  of  the  United  States  of  America  to 
the  foreign  office  of  the  United  States  of  Venezuela;  and 

AVhereas  this  claim  was  presented  to  this  Commission  by  the  honor- 
able agent  of  the  United  States  of  America  on  June  16,  1903;  and 

Whereas  the  honorable  agent  of  the  United  States  of  Venezuela 
opposed  this  claim  in  his  answer  dated  Jul}'  9,  1903;  and 

Whereas  on  the  16th  of  July,  1903,  a  brief  prepared  bj^  the  attorney's 
of  the  claimant  was  submitted  by  the  honorable  agent  of  the  United 
States  of  America  "in  replication,"  as  he  says,  "to  the  answer  of  the 
Venezuelan  Government  in  the  above-entitled  case,"  thus  making  this 
brief  the  replication  of  the  United  States  of  America  to  the  answer  of 
the  United  States  of  Venezuela; 

Whereas  further  on  claimant  says  in  her  claim  filed  at  the  State 
Department:  "1  claim  for  assault,  insult,  abuse,  and  imprisonment;" 
and 

Whereas  the  honorable  agent  of  the  United  States  of  America  in  the 
first  brief  stated  that  the  claim  was  for  damages  for  personal  injuries, 
insults,  abuse,  and  false  imprisonment; 

But  whereas  the  brief  of  attorneys,  that  has  to  be  regarded  as  the 
replication  of  the  United  States  of  America  after  the  answer  of  the 
United  States  of  Venezuela  was  given,  formallv  states  that  the  claim 
arises  out  of  unlawful  arrest  and  imprisonment,  and  afterwards  repeats: 
"  Her  claim  is  entirely  for  damages  for  detention  of  her  person,"  it  is 
shown  that,  after  the  replication  the  claim  has  to  be  looked  upon  as  a 
claim  for  unlawful  arrest  and  detention  (which  opinion  seems  to  be 
enforced  by  the  opinion  of  the  honorable  Commissioner  of  the  United 
States  of  America,  Avhen  stating  his  unableness  to  ag-ree  with  the  honor- 
able Commissioner  for  the  United  States  of  Venezuela,  he  delares  that 
it  appears  to  him  that  Mrs.  Underbill  "is  entitled  to  an  award  for  her 
unlawful  detention");  and 

Whereas  perhaps  practically  the  admitting  of  the  other  causes,  named 
in  the  claim  and  in  the  fii'st  brief,  would  be  of  no  great  influence  (as  the 
evidence  shows  that,  wdiatever  may  or  might  have  been  proved  to  have 
happened  to  claimant's  husband,  George  Underbill,  there  is  no  proof 
of  any  assault,  insult,  or  abuse  as  regards  Jennie  I^aura  Underbill, 
except  what  happened  in  the  morning  of  the  11th  of  August,  1S92, 
when  an  irritable  and  exasperated,  ungoverned  mob,  which  believed 
the  l^nderhills  to  be  partial  to  the  very  unpopular  party  with  whose 
chiefs  and  officials  they  were  on  the  point  to  escape  from  the  cit}'; 
which  conviction  was  not  without  appearance  of  reason,  fostered  b}'^ 
the  fact  that  the  Undorhills  entertained  the  commanding  general  and 
chiefs  of  that  party  on  thcic  ''departure  to  fight  the  then  popular  party 
called  "  Legalists,"  prevented  her  leaving  the  city,  and  assaulted, 
insulted,  and  abused  her;  for  which  assault,  insult,  and  al)use  of  an 
exasperated  mob  in  a  riot,  the  Government,  even  when  admitting  that 


100  REPORT  OF  ROBERT  C.  MORRIS. 

on  that  morning-  there  was  a  de  facto  Government  in  Ciudad  Bolivar — 
(juod  non — can  not  be  held  responsible,  as  neither,  according  to  inter- 
national, national,  civil,  nor  whatever  law  el^^e  anyone  can  be  liable  for 
damaoes  where  there  is  no  fault  by  unlawful  acts,  omission,  or  neg"li- 
gence,  while  in  regard  to  the  events  of  the  morning  of  August  11, 
18!>2,  there  is  nt)  proof  of  unlawful  acts,  omission,  or  negligence  on 
the  i)art  of  what  there  miglit  be  regarded  as  local  authorit}^  which  was 
neither  the  cause  of  the  outrageous  acts  of  the  infuriated  mob,  nor  in 
these  extraordinary  circumstances  could  have  prevented  or  suppressed 
them),  still,  equity  to  the  contending  parties  seems  to  require  that 
after  the  replication  of  the  honorable  agent  of  the  United  States  of 
America,  unlawful  arrest  and  detention  be  looked  upon  as  the  acknowl- 
edged cause  of  this  claim. 

Now,  whereas  in  investigating  the  evidence  laid  before  the  Commis- 
sion in  this  claim,  it  has  to  be  remembered  that,  if  it  be  true  what  the 
honora]>le  agent  of  the  United  States  of  America  remarked  about  the 
deposition  of  General  Hernandez  (chief  of  the  Government  in  Ciudad 
Bolivar  after  IGth  of  August,  189^2),  viz,  that  this  gentleman,  notwith- 
standing his  honor,  integrity,  and  high  position,  had  been  so  intimately 
connected  with  the  acts  out  of  which  this  claim  arises,  that  he  could 
scarcely  be  expected  to  be  able  to  make  an  unbiased  statement  in 
regard  to  it,  at  least  the  same  reflection  must  be  borne  in  mind  respect- 
ing the  memorials  and  depositions  of  Jennie  Laura  Underbill  and  her 
husband  which  form  the  main  part  of  the  evidence;  and 

Whereas,  according  to  the  brief  of  the  attorneys,  the  claim  arises 
out  of  unlawful  arrest  and  imprisonment  from  August  11,  1892,  to 
October  —  of  that  same  year;  and 

AVhereas  the  evidence  shows  that  on  the  11th  day  of  August,  although 
the  mob  shouted,  "To  the  carcel  with  the  Underbills,"  the  Underbills 
were  not  arrested  and  brought  to  the  carcel,  but  fled  to  the  Union 
Hotel,  where  the  mob  did  not  follow  them,  but  where  a  guard  was 
placed  before  the  door;  while  the  evidence  does  not  show  whether  this 
guard  was  placed  there  to  protect  the  Underbills  by  preventing  the 
mob  from  entering  the  hotel  or  to  prevent  Mr.  Underbill  from  leaving 
the  house; 

Whereas  further  on  Mrs.  Underbill  herself  declares  that  in  the  after- 
noon of  that  same  day  she  hastened  from  the  hotel  (where  she  just  before 
declared  she  had  been  imprisoned),  went  to  the  prefect's  ofiice,  and 
afterwards,  together  with  her  husband,  left  that  place  and  returned — 
not  to  the  hotel,  where  she  declared  she  was  imprisoned,  but  to  her 
home;  and 

Whereas,  as  evidence  shows,  claimant  declared  before  the  United 
States  circuit  court,  eastern  district  of  New  York,  that  on  the  26th 
of  September  she  went  to  General  Hernandez  in  person — to  his  house; 
that  afterwards  she  went  to  the  Government  building  and  saw  Her- 
nandez there; 

Whereas,  therefore,  no  evidence  is  to  be  found  of  claimant  being- 
arrested  and  imprisoned;  but,  on  the  contrary,  her  own  declarations 
rather  show  that  there  scarcely  can  be  question  of  imprisonment  while 
she  could  leave  the  hotel  and  leave  the  house; 

The  investigation  of  the  evidence  laid  before  the  Commission  com- 
pels me  to  come,  in  regard  to  claimant,  to  the  same  conclusion  as  that 
arrived  at  in  regard  to  her  husband,  by  Commander  Crowninshield,  of 
the  United   States  Navy  (after  investigating  the  case  at  the  place 


REPORT  OF  ROBERT  C.  MORRIS.  167 

itself,  and  almost  immediately  after  the  facts  occurred,  and  after  hearing 
the  prominent  citizens  of  Ciudad  Bolivar  by  him  enumerated,  for  the 
most  part  foreigners),  that  no  evidence  of  imprisonment  could  be  found; 

Wherefore  the  charge  against  the  Government  of  Venezuela  of 
claimant's  unlawful  arrest  and  imprisonment  must  be  rejected. 

But  as  furthermore  claimant  claims  award  for  damages  on  the  charge 
of  detention  of  her  person; 

And  whereas  without  any  arrest  and  imprisonment  detention  takes 
place  when  a  person  is  prevented  from  leaving  a  certain  place,  be  it  a 
house,  town,  province,  countrj^^j  or  whatever  else  determined  portion  of 
space;  and 

Whereas  it  is  shown  in  the  evidence  that  claimant  wished  to  leave  the 
country,  which  she  could  not  do  without  a  passport  being  delivered  to 
her  b^^'the  Venezuelan  authorities,  and  that  from  August  litill  Septem- 
ber 27  such  passport  was  refused  to  her  by  General  Hernandez,  then 
chief  of  the  government  of  Ciudad  Bolivar,  and  the  fact  that  claimant 
was  detained  by  the  Venezuelan  authorities  seems  proved;  and 

Whereas  whatever  reason  may  or  might  have  been  proved  to  exist 
for  refusing  a  passport  to  claimant's  husband,  no  reason  was  proved 
to  exist  to  withhold  this  passport  from  claimant;  and 

Whereas  the  alleged  reason  that  it  would  not  be  safe  for  the  Under- 
bills to  leave  on  one  of  Mr.  Mathinson's  steamers  can  not  be  said  to  be 
a  legal  reason,  for  if  it  be  true  that  there  existed  any  danger  at  that 
time,  a  warning  from  the  Government  would  have  been  praiseworthy 
and  sufficient;  but  this  danger  could  not  give  the  Government  a  right 
to  prevent  Mrs.  Underbill  from  freel}'  moving  out  of  the  countr}^  if  she 
wished  to  risk  the  danger,  while,  on  the  other  hand,  it  might  have  been 
said  that  the  steamer  being  public  means  of  transfer,  it  would  have 
been  the  duty  of  the  Government  to  protect  the  passengers  from  such 
danger  on  the  steamers,  when  existing; 

Whereas,  therefore,  it  is  shown  that  Mrs.  Underbill  was  unjustly  pre- 
vented by  Venezuelan  authorities  from  leaving  the  country  during  about 
a  month  and  a  half,  the  claim  for  unlawful  detention  must  be  recognized. 

And  whereas  for  this  detention  the  sum  of  $2,000  a  month,  making 
$3,000  for  a  month  and  a  half,  seems  a  fair  award,  this  sum  is  hereby 
granted. 

The  United   States   and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  Statt's  of  America,  on  behalf  of  Jennie 
Laura  Underbill,  claimant,  against  the  Republic  of  Venezuela,  No.  15, 
the  sum  of  J?H,<)00,  United  States  gold,  is  hereby  awarded  in  favor  of 
said  claimant,  which  sum  shall  be  paid  l)y  the  Government  of  Vene- 
zuehi  to  the  Government  of  the  United  States  of  America,  in  accordance 
with  the  provisions  of  the  convention  under  which  this  award  is  made. 
The  claim  of  George  Freeman  Underbill  is  dismissed. 

Harry  Barge,  Umpire. 
Attest: 

Edo.  Calcano  Sanavrta, 

Secretary  on  tlie  jmrt  of  Venezuela. 

Rudolf  Dodge, 

Secretary  on  the  jxirt  oft/te  Ihdted  States  of  Atnerica. 

Delivered  November  28,  19(>3. 


108  REPOET  OF  ROBERT  C.  MORRIB. 

Before  the  INIixed  Commission  orj^anizod  under  the  protocol  of  Fel)ru- 

iiry  17,  1008,  between  the  United  States  of  America 

and  the  Republic  of  Venezuehi. 

Thk  United  States  of  America,  on  behalf  of 
the  administratrix  and  heirs  at  law  of  (xiovanni 
Turini,   deceased,   the    Gorhani    Manufacturing 
Company,  and  Joseph  Carabelli,  claimants, 
^^ 
TiiK  Kepuhlic  OF  Venezuela. 


^No.  16. 


BRIEF  ON  BEHAIiF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  cu.se  the  claim  of  the  administra- 
trix and  heirs  at  law  of  Giovanni  Turini,  the  Gorham  Manufacturing- 
Corn  pan}",  and  Joseph  Carabelli,  jointly  interested  for  breach  of  a 
written  contract. 

(iriovani  Turini,  now  deceased,  was  a  naturalized  citizen  of  the 
United  States.  The  Gorham  Manufacturing  Company  is  a  corpora- 
tion existing  under  the  laws  of  the  State  of  Rhode  Island,  and  a  citi- 
zen of  the  United  States.  Joseph  Carabelli  is  a  naturalized  citizen  of 
the  United  States.  The  claim  made  in  which  the  parties  are  jointly 
interested  arises  out  of  the  following  facts: 

On  July  2S,  1896,  an  agreement  was  made  between  the  secretary  of 
public  works  of  the  United  States  of  Venezuela  and  Giovanni  Turini, 
a  sculptor  of  New  York  Cit}^,  for  the  execution  ])y  the  latter  of  three 
statues,  to  wit,  an  equestrian  statue  of  General  Paez  and  a  statue  of 
Liberty,  both  to  be  erected  at  the  city  of  Caracas,  and  a  statue  of 
General  Bolivar,  destined  to  be  presented  to  the  city  of  New  York  by 
the  Venezuelan  Government. 

This  contract  was  duly  authorized  by  the  Venezuelan  Government. 
The  price  to  be  paid  was  1^13,000,  pa3^able  in  seventeen  monthly  pay- 
ments of  $2,300  per  month  and  one  payment  besides  of  $3,900.  The 
statues  of  Paez  and  of  Liberty  were  to  be  delivered  on  board  ship  at 
the  port  of  New  York;  the  tir.st,  two  months  prior  to  April  2,  1897; 
the  second,  two  months  prior  to  the  5th  day  of  July,  1897.  The  first 
two  statues  were  to  be  executed  in  conformity  with  sketches  delivered 
by  Turini  to  the  secretary  of  public  works.  The  statue  of  Bolivar 
was  to  be  a  replica  or  copy  of  the  one  erected  in  the  Plaza  of  Bolivar 
at  Caracas  with  one  change,  to  wit,  that  it  should  be  one-fourth  larger. 

Pursuant  to  this  contract,  Turini  executed  the  statue  of  General 
Paez.  together  with  the  pedestal,  and  the  same  has  long  been  ready 
for  delivery.  Considerable  work  was  also  done  upon  the  other  two 
statues,  the  models  being  completed  ready  to  be  cast  in  bronze.  The 
work  remaining  to  l)e  done  represents  a  cost  of  only  $11,00<). 

There  has  been  paid  by  Venezuela,  on  account  of  this  contract,  in  all, 
the  sun)  of  $8,130,  the  last  payment  being  made  in  April,  1897.  The 
nonpayment  of  the  stipulated  monthl}"  sums  was  alleged  to  be  and  was 
a  breach  of  the  contract  on  the  part  of  the  Government  of  Venezuela. 

Turini  incurred  liabilities  to  the  Gorham  Manufacturing  Company 
to  the  extent  of  $9,000,  for  which  they  have  received  an  assigmnent 
from  him  of  that  proportionate  interest  in  the  contract.  He  has  also 
incurred  other  liabilities  to  the  amount  of  $9,350  in  connection  with 
the  w^ork,  among  them  being  the  liability  of  Joseph  Carabelli,  shown 
by  the  assignment  submitted. 


REPORT  OF  ROBERT  C.  MORRIS.  169 

The  excuse  oiiginuU}^  submitted  by  the  Government  of  Venezuela 
for  not  earning  out  the  contract  was  that  the  National  Society  of 
Sculpture  of  New  York  had  refused  to  accept  the  proposed  statue  of 
Bolivar  as  not  proper  from  an  artistic  standpoint  for  erection  in 
Central  Park,  New"  York,  where  it  was  the  intention  of  the  Venezuelan 
Government  to  dedicate  the  same,  and  that  the  Venezuelan  Govern- 
ment fears  the  other  two  statues  would  also  be  lacking  in  artistic 
merit.  The  evidence  shows  that  this  position  of  the  Venezuelan  Gov- 
ernment must  now  be  abandoned.  The  municipal  art  commission  of 
New  York  City  has,  in  a  letter  to  Mr.  Turini  of  May  2.5,  1S99, 
expressly  approved  his  design  of  the  statue  of  General  Bolivar  to  be 
placed  in  Central  Park. 

Moreover,  the  refusal  of  the  municipal  art  commission  to  authorize 
the  erection  of  this  statue  in  Central  Park  would  not  be  any  evidence 
of  the  nonperformance  of  the  contract  on  the  part  of  Turini.  The 
contract  provided  the  statue  of  Bolivar  to  be  erected  in  New  Y''ork 
should  be  an  exact  replica  of  the  one  in  Caracas,  and  it  nowhere 
appears  or  is  claimed  that  it  was  not.  The  other  statues  were  to  be 
executed  in  conformity  with  sketches  made  by  Turini,  and  it  now^here 
appears  that  the  work  done  upon  them  was  not  in  accordance  with  such 
sketches. 

The  case  therefore  presents  absolutely  no  cause' or  excuse  for  a 
breach  of  the  contract  on  the  part  of  the  Government  of  Venezuela, 
w^hich  breach  is  clearly  established. 

The  claimants  are  therefore  entitled  to  relief,  and  it  clearly  appears 
from  the  evidence  that  the  damage  would  be  at  least  $23,870,  to  wit, 
the  contract  price,  deducting  the  amount  paid  and  the  $11,000  which 
it  would  cost  to  complete  the  work. 

Interest  should  be  allowed  from  the  date  of  the  breach  of  the  con- 
tract upon  this  written  contractual  obligation  of  the  Venezuelan  Gov- 
ernment. The  interest  amounts  to  $4,709.55,  making  the  total  amount 
due  §28,579.55. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent,  of  the  United  States. 

[Translation.] 

The  Gorham  Manufacturing  Company  and  Joseph  Carabelli,  as  suc- 
cessors \\\  interest  of  G.  Turini.     Claim  No.  16. 

Ifonorable  members  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  Gorham  Manufactur- 
ing Company  and  Joseph  Carabelli,  American  citizens,  in  which  tliey 
state  that  they  are  successors  in  interest  of  G.  Turini,  and  respectfully 
shows  to  the  tribunal: 

The  present  claim  arises  out  of  an  alleged  violation  on  the  part  of 
Venezuela  of  a  contract  entered  into  between  the  minister  of  public 
works  and  the  said  Turini  for  the  construction  of  three  statues  of 
bronze,  one  of  which  was  destined  for  Central  Park  in  the  city  of  New 
Yoi-k. 

The  statement  of  facts  in  the  matter  is  faithfully  set  out  in  the 
report  which,  at  the  instance  of  the  undersigned,  the  department  of 
public  works  has  made,  and  the  original  of  which  is  aimexed  to  this 


la)  REPORT  OF  ROBERT  C.  MORRIS. 

aiiswor.  The  undorsi_o-nod  docs  not  think,  thorc^fore,  that  ho  should 
ihvell  upon  a  statcuient  of  the  facts  and  circumstances  which  gave  rise 
to  the  claim,  and  confines  himself  to  the  discussion  of  the  mere  ques- 
tion of  law. 

The  successors  in  interest  of  Turini  allege  the  nonperformance  of  the 
contract  entered  into  by  their  predecessor  and  demand  the  payment  of 
sums  of  money  due  on  account  of  that  agreement;  the  Government 
of  Venezuela  sists  forth  a  ground  of  complaint  simihir  to  that  alleged 
on  the  part  of  Turini.  The  dispute  therefore  has  alwws  been  of  a 
conci-ete  nature  and  ought,  per  force,  to  be  conlined  to  the  two  parties.' 

The  assignment  to  third  parties,  made  by  Turini  of  the  rights  wiiich 
he  might  have  had,  is  therefore  an  assignment  of  a  right  in  litigation 
which  can  not  be  settled,  as  has  already  been  said,  except  between  the 
original  contractor,  or,  in  case  of  his  failure  to  do  so,  his  heirs  and  the 
Government  of  Venezuela. 

The  fiction  of  law  which  perpetuates  in  the  heir  the  personality  of 
de  cujus  could  not  be  extended  to  his  successors  in  interest  by  assign- 
ment or  purchase,  since  the  personal  objections  which  would  operate 
against  the  former  could  not  legitimatelv  be  set  up  against  the  latter. 
This  is  a  principle  of  common  law  sanctioned  by  the  legislation  of  all 
civilized  countries.  ' 

Neither  Turini  nor  his  heirs  have  claimed  or  set  up  in  an  action  the 
rights  which  by  the  aforesaid  contract  they  might  have  suciceeded  to 
against  Venezuela,  and  which  a  judgment  pronounced  by  the  compe- 
tent tribunals  of  this  latter  can  alone  confirm. 

Moreover,  it  may  be  observed  that  the  position  of  the  assignee  of 
rights  in  litigation  is  viewed  unfavorably  by  every  legislation.  JPothier 
calls  him  "a  hated  purchaser  of  suits."  Portalis  says  ""that  he  who 
buys  a  lawsuit  does  so  with  the  object  of  vexing  the  debtor  and  enrich- 
ing himself  at  his  expense." 

The  Government  of  Venezuela  is  not  obliged  to  pay  the  claim  of  the 
Gorham  Manufacturing  Compan}^  nor  of  Joseph  Carabelli,  to  whom  it 
has  never  been  bound  by  any  juridic  tie  or  relation. 

In  consequence,  therefore,  the  claim,  as  it  has  been  presented,  is  inad- 
missible and  ought  to  be  so  declared. 

Caracas,  July  8,  1903. 

F.  ARRoro  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America,  on  behalf  ~ 
of   the  administratrix  and   heirs  at  law  of 
Giovanni  Turini,  deceased,  the  Gorham  Manu- 
facturing Company,  and  Joseph  Carabelli,  J- No.  16. 
claimants, 

V. 

The  Republic  of  Venezuela. 

REPLICATION  ON  BEHALF  OF  THE  ITNITED  STATES. 

In  the  answer  of  Venezuela  to  the  above  claim  it  is  contended  that 
the  claimants,  the  Gorham  Manufacturing  Company  and  Joseph  Cara- 
belli, as  assignees  of  Giovanni  Turini,  are  not  entitled  to  receive  an 


REPORT  OF  ROBERT  C.  MORRIS.  171 

award  because  such  an  assignment  amounts  to  a  transfer  of  rio-hts  in 
litigation  wliicli  can  not  be  admitted. 

With  respect  to  the  claim. made  on  l)ehalf  of  the  administratrix  and 
the  heirs  at  law  of  Giovanni  Turini  the  Venezuelan  Government  makes 
no  specitic  rep]}^,  but  the  honorable  agent  of  that  Government  does 
say,  in  his  an.swer: 

The  assignment  to  third  parties,  made  by  Turini,  of  the  rights  which  he  might 
have  had,  is,  therefore,  an  assignment  of  a  right  in  litigation  which  can  not  be  settled, 
as  has  already  l)een  said,  except  befireen  the  original  andractur,  or,  in  case  of  his  death, 
his  heirs  and  the  Government  of  Veifezuela. 

Annexed  to  the  answer  the  honorable  agent  has  submitted  a  report 
made  by  the  minister  of  public  v.^orks  to  him  with  respect  to  the  cir- 
cumstances concerning  the  origin  of  the  above- entitled  claim.  In  this 
report  there  is  a  statement  of  facts  which  is  essentiall}'  in  accord  with 
that  made  in  the  brief  submitted  on  behalf  of  the  United  States  in  this 
matter,  and  may,  therefore,  be  accepted  as  an  admission  of  such  facts 
on  the  part  of  the  Venezuelan  Government. 

I. 

The  contention  of  the  honorable  agent  of  the  Venezuelan  Govern- 
ment that  the  claims  of  the  Gorham  Manufacturing  Company  and 
Joseph  Carabelli  are  not  admissible  because  an  assignment  in  such  case 
amounts  to  the  transfer  of  a  right  in  litigation  is  not  well  founded. 
For  a  right  in  litigation  to  be  transferred,  we  must  presuppose  that 
such  litigation  existed;  but  there  is  no  evidence  of  any  suit  brought  on 
the  part  of  Mr.  Turini  before  these  assignments  were  made  to  the 
respective  claimants.  That  these  assignments  transferred  right  to  a 
chose  in  action  there  can  be  no  doubt;  but  the  objection  raised  by  the 
honorable  agent  of  Venezuela  to  the  transfer  of  rights  in  litigation 
can  not  avail  when  there  is  question  of  a  transfer  of  a  chose  in  action. 
The  respective  claimants  here  have  a  right  to  prosecute  their  claims  in 
the  name  of  Mr.  Turini  to  the  amount  of  their  respective  assignments. 

II. 

With  respect  to  the  other  claimants,  namely,  the  administratrix  and 
the  heirs  at  law  of  Giovanni  Turini,  it  is  to  be  noted  that  their  status 
as  administratrix  and  heirs  at  law  has  been  fully  established  as  is  shown 
by  the  evidence  submitted  in  this  case.  The  agent  of  the  Venezuelan 
Government  himself  admits  that  the  heirs  at  law  or  the  legal  represen- 
tatives of  Mr.  Turini  would  have  the  right  to  prosecute  this  claim 
against  the  Government  of  Venezuela  and  in  no  way  (juestions  the  jur- 
isdiction of  this  Commission  to  pass  upon  such  claim.  Such  a  claim 
lias  been  made  on  the  part  of  the  heirs  of  Giovanni  Turini,  as  will 
appear  f I'om  the  papers  on  file,  and  is  amply  supported  by  the  proofs 
produced  and  the  admission  of  the  Vene/uehvn  Govermnent. 

An  awai'd  should  be  made  for  the  full  amount  claimed  with  the  legal 
interest  at  8  \Hn'  cent  per  annum  from  tiie  date  of  the  breach  of  contract 
on  the  part  of  the  Venezuelan  Government. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of'  the  United  States. 


172  liEPORT   OF   KOBEUT    C.   MOKSli^. 

The  United  States  and  Venezuelan   Claims  Commission,  sitting  at 

Caracas.  Venezuela. 

TiiK  Tnited  States  or  America,  on  behalf] 
of  the  estate  of  Cxiovanni  Turini,  deceased,  I 
claimant,  the  Gorham  Manufacturing  Com-  | 
pany,  the  L3'ons  Granite  Company,  and  j-No.  16. 
Joseph  Carrabelli,  intervenors. 

The  Republic  of  Venezuela. 

Bainbridge,  Commissiooier : 

On  Jul}'  28,  1896,  a  contract  was  executed  between  the  secretary  of 
public  works  of  the  United  States  of  Venezuela,  full}'  authorized  by 
the  President  of  the  Repul^lic,  and  Giovanni  Turini,  sculptor,  resid- 
ing in  Kew  York  City,  and  a  naturalized  citizen  of  the  United  States, 
whereby  it  was  agreed: 

1.  On  the  part  of  Giovanni  Turini  that  he  would  execute  for  the 
Government  of  Venezuela  three  statues,  one  equestrian  of  Gen.  Jose 
Antonio  Paez,  another  of  Liberty,  and  a  third  of  Bolivar,  the  latter 
destined  to  be  presented  by  the  Government  of  Venezuela  to  the  city 
of  New  York;  that  he  would  deliver  the  statues  of  Paez  and  Liberty 
on  board  ship  at  the  port  of  New  York  two  months  before  the  day  set 
for  the  inauguration  of  the  same,  being,  for  the  tirst  statue,  April  2, 
1897,  and,  for  the  second,  July  .5,  1897;  that  these  two  monuments 
would  be  made  in  conformity  with  the  executive  decrees  of  July  Sand 
4,  1S96,  in  reference  thereto,  and  also  in  conformity  with  the  sketches 
of  said  statues  delivered  by  Turini  to  the  secretary  of  public  works; 
that  the  equestrian  statue  of  Bolivar  would  be  a  replica  or  copy  of  the 
statue  of  Bolivar  erected  in  the  Plaza  Bolivar,  m  Caracas,  with  one 
change,  that  the  dimensions  of  the  one  to  be  built  should  be  one-fourth 
larger  than  natural  size;  that  the  materials  for  the  pedestal  as  well  as 
for  the  statue  would  be  of  the  same  kind  as  those  used  for  the  afore- 
said monument,  which  was  to  serve  as  a  model;  that  Turini  would 
deliver  the  statue  of  Bolivar  to  the  representative  of  Venezuela  at 
New  York,  would  engrave  on  the  pedestal  such  inscription  as  the  Gov- 
ernment of  Venezuela  might  suggest  to  him,  and  would  place  said 
statue  in  New  York  at  the  spot  to  be  designated. 

2.  On  the  part  of  the  Government  of  Venezuela  that  it  would  pay 
Turini  for  the  execution  of  the  three  statues  the  sum  of  $13,000  gold 
or  227,900  bolivares,  in  seventeen  monthly  payments  of  $2,300  or 
12,190  bolivares  per  month,  besides  one  monthly  payment  of  $3,900  or 
20,670  bolivares;  that  the  lirst  monthly  payment  would  be  made 
August  1,  1896,  and  that  it  would  pay  the  freight  and  expenses  of 
erection  of  the  statues  of  Paez  and  Liberty. 

It  was  further  agreed  that  at  the  time  of  shipment  of  the  statues  of 
Paez  and  Liberty  the  Venezuelan  consul  at  New  York  must  certify 
that  they  had  been  properly  executed,  were  in  good  condition,  and 
well  jjacked. 

Pursuant  to  this  contract: 

1.  Turini  executed  the  statue  of  General  Paez  together  with  the 
pedestal,  performed  considerable  direct  work  upon  the  statue  of 
Liberty  and  that  of  Bolivar,  the  model  of  both  being  completed  and 


REPOKT  OF  ROBERT  C.  MORRIS.  173 

ready  to  be  cast  in  bronze,  and  completed  the  pedestal  for  the  statue 
of  Liberty. 

2.  The  Government  of  Venezuela  paid  to  Turini  altogether  the  sum 
of  $8,130,  the  last  payment  being  made  in  April,  1897,  in  the  sum  of 
$1,850. 

By  the  terms  of  the  contract  the  Government  of  Venezuela  was  to 
pay  seventeen  monthly  installments  of  §2,300  each,  beginning  August 
1,  1896,  besides  one  monthly  payment  of  $3,900.  The  contract  was 
broken  I)}"  Venezuela  within  four  months  from  August  1,  1896,  by  its 
failure  to  make  the  stipulated  payments.  Nevertheless,  Turini  pro- 
ceeded with  the  work  and  appears  to  have  accepted  the  pa3'ment  of 
$1,850  made  in  April,  1897.  But  any  failure  of  Turini  to  complete 
and  deliver  the  statues  at  the  time  specified  in  the  contract  was  clearly 
due  to  the  prior  failure  of  the  Venezuelan  Government  to  make  the 
monthly  payments  as  provided  therein.  This  provision  in  the  contract 
may  have  been  and  probal^ly  was  the  very  reason  why  Turini  agreed 
to  complete  and  deliver  the  statues  within  the  time  specified. 

In  1898  the  Venezuelan  Government  claimed  that  it  could  not  and 
would  not  accept  the  statue  of  Bolivar  because  the  National  Society  of 
New  York  declared  the  statue  to  be  without  artistic  merit;  and  also  that, 
fearing  that  the  statue  of  General  Paez  might  be  lacking  the  "neces- 
sary artistical  requisites,"'  it  should  be  submitted  to  the  judgment  of  a 
jury  of  artists,  without  the  award  of  which  the  Government  could  not 
take  into  consideration  Mr.  Turini's  claim. 

But  Turini  did  not  agree  to  execute  for  Venezuela  a  statue  of  Boli- 
var which  would  be  acceptable  to  the  National  Society  of  Sculpture  of 
New  York,  nor  did  he  agree  to  execute  a  statue  of  General  Paez,  sub- 
ject to  the  judgment  of  a  jury  of  artists.  He  agreed  to  execute  stat- 
ues of  Paez  and  of  Libert}^  in  conformity  with  the  executive  decrees 
of  July  3  and  4,  1896,  in  reference  thereto,  and  in  conformit}^  with 
the  sketches  of  said  statues  delivered  1)}'  him  to  the  secretary  of  public 
works.  He  agreed  to  execute  a  statue  of  Bolivar  which  would  be  a 
replica  or  copy  of  the  one  in  the  Plaza  Bolivar,  in  Ca:racas,  the  dimen- 
sions, however,  to  be  one-fourth  larger  than  natural  size. 

It  is  not  claimed  that  Turini's  work  does  not  comply  as  to  artistic 
merit  with  his  agreement,  but  it  is  sought  to  measure  it  b}"  standards 
other  than  those  expressed  in  the  contract.  If  the  Venezuelan  Gov- 
ernment desired  work  done  acceptable  to  the  National  Societ}^  of 
Sculpture  of  New  York,  or  su})ject  to  the  approval  of  a  jur}"  of  artists, 
it  should  have  so  stipulated.  Nor  can  it  be  assumed  that  Mr.  Turini 
would  have  agreed  to  do  such  work  at  the  price  designated  in  the 
instrument  before  us. 

The  duty  of  the  Commission  is  to  determine  the  rights  and  obliga- 
tions of  the  parties  under  the  contract  as  it  is,  not  as  it  might  have 
b(!en.  And  the  true  measure  of  damages  in  a  case  like  this,  where 
one  engaged  in  the  performance  of  a  contract  is  prevented  by  the 
emplo3-er  from  completing  it,  is  the  difference  between  the  price 
agreed  to  be  paid  for  the  work  and  what  it  would  have  cost  the  party 
employed  to  complete  it,  deducting,  of  course,  the  amount  already 
paid. 

Here  the  price  agreed  to  be  paid  is  the  sum  of  $43,000,  of  which 
$8,130  have  been  paid.  The  evidence  shows  that  it  will  cost  about  the 
sum  of  $11,000  to  complete  the  work.  The  difference  is  the  sum  of 
$23,870.     Interest  should  be  allowed  on  this  sum  at  the  rate  of  3  per 


174  REPORT  OF  ROBERT  C.  MORRIS. 

ooiit  per  nniuim  from  Jamuiry  1,  1898,  to  Decem})er  31,  1903,  the 
antiriputcd  date  ot"  the  iiiial  award  by  this  Comiiiissioii, 

The  estate  of  (jiovamii  Turini  is  therefore  entitled  to  an  award  in 
the  sum  of  twentj^-eight  thousand  one  hundred  and  sixty-six  and  ^%% 
dolhirs  gold. 

Giovanni  Turini  died  August  27,  1899,  and  thereafter  on  September 
9,  1899,  letters  of  administration  of  his  estate  were  duly  granted  to 
his  widow,  Margaret  Turini,  by  the  surrogate  of  the  county  of  New 
York. 

At  the  time  of  Turini's  death  his  estate  was  and  still  is  liable  for  the 
following  debts  which  were  iiicurred  by  him  in  carrjnng  out  his  con- 
tract with  the  Government  of  Venezuela: 

(1)  To  the  Gorham  Manufacturing  Company,  the  sum  of  $6,319, 
with  interest  thereon  at  6  per  cent  per  annum  from  July  1,  1897. 

(2)  To  Joseph  Carrabelli,  the  sum  of  $3,095,  with  interest  thereon 
at  6  per  cent  per  annum  from  October  22,  1898. 

(3)  To  the  Lyons  Granite  Company,  the  sum  of  $2,358. -1.5,  with 
interest  at  6  per  cent  per  annum  from  October  1,  1899. 

The  above-named  parties,  as  intervenors  in  this  claim,  should  be 
protected  to  the  extent  of  their  proportionate  interests  in  the  distri- 
bution of  the  award  herein  made  to  the  estate  of  Giovanni  Turini, 
deceased. 

Filed  August  4,  1903. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf  of 
the  administratrix  and  heirs  at  law  of  Giovanni 
Turini,    deceased,    the    Gorham     Manufacturing  \^     in 
Company,  and  Joseph  Carabelli,  claimants, 

V. 

The  Republic  of  Venezuela. 

Doctor  Paul,  Com'missioner: 

This  claim  is  presented  by  the  Government  of  the  United  States  on 
behalf  of  the  administratrix  and  heirs  at  law  of  Giovanni  Turini, 
deceased,  the  Gorham  Manufacturing  Company,  and  Joseph  Carabelli, 
jointly  interested,  for  lireach  of  a  written  contract.  The  amount  of 
the  claim  is  $28,579.55,  interest  included. 

Giovanni  Turini,  now  deceased,  was  a  naturalized  citizen  of  the 
United  States.  The  Gorham  Manufacturing  Company  is  a  corpora- 
tion existing  under  the  laws  of  the  State  of  Rhode  Island,  and  a  citizen 
of  the  United  States,  and  Joseph  Carabelli  is  a  naturalized  citizen  of 
the  United  States. 

The  claim  arises  out  of  the  following  facts: 

On  July  28,  1896,  an  agreement  was  made  between  the  secretary  of 
public  works  of  the  United  States  of  Venezuela,  full}'  authorized  by 
the  President  of  the  Republic,  and  Giovanni  Turini,  sculptor,  residing 
in  the  city  of  New  York,  represented  by  Messrs.  J.  Boccardo  & 
Co.,  for  the  execution  of  three  statues,  one  equestrian  of  General 
Jose  Antonio  Paez,  another  one  of  '■'Uibert}^"  both  to  be  erected 
in  the  city  of  Caracas,  and  a  third  one  of  General  Bolivar,  destined  to 
be  presented  to  the  city  of  New  York  by  the  Venezuelan  Government. 


EEPOKT  OF  ROBERT  C.  MORRIS.  l75 

Turini  bound  himself  to  execute  the  aforesaid  statues  for  the  amount 
of  $43,000  gold,  payable  by  the  Government  of  Venezuela,  at  the  cit}- 
of  Caracas,  to  whomsoever  should  be  authorized  to  represent  Turini, 
in  seventeen  monthl}^  payments  of  $2,800  per  month,  and  one  monthly 
payment  besides  of  $3,900,  the  first  monthl}"  pajnnent  to  be  made  at 
the  office  of  Messrs.  J.  Boccardo  &  Co.,  on  the  1st  day  of  August,  isitB. 

Turini  also  bound  himself  to  deliver  the  statues  of  Paez  and  of 
Liberty,  on  board  ship,  at  the  port  of  New  York,  two  months  before 
the  day  set  for  the  inauguratibn  of  the  same,  being  for  the  first  statue 
the  2d  day  of  April,  1897,  and  for  the  second  the  5th  day  of  July, 
1897.  These  monuments  had  to  be  made  in  conformity  with  the 
decrees  of  the  executive  of  the  3d  and  4th  days  of  July  of  the  same 
year,  1896,  in  reference  to  the  same  and  also  in  conformity  with  the 
sketches  of  said  statues  delivered  by  Turini  to  the  secretar}^  of  public 
works.  The  statue  of  Bolivar  was  to  be  a  replica,  or  copy,  of  the  one 
erected  in  the  Plaza  Bolivar  at  Caracas,  with  one  change,  to  wit,  that 
it  should  be  one-fourth  larger  than  natural  size,  the  material  for  the 
pedestal  as  well  as  for  the  statue  to  be  of  the  same  kind  as  those  used 
for  the  aforesaid  monument,  which  would  serve  as  a  model. 

It  was  also  agreed  that  at  the  time  of  the  shipment  of  the  two  mon- 
uments destined  to  Caracas,  the  Venezuelan  consul  at  New  York  had 
to  certify  that  the  same  had  been  properly  executed  and  were  in  good 
condition  and  well  packed. 

The  memorial  of  Turini  shows  that  pursuant  to  said  contract  he  exe- 
cuted the  statue  of  General  Paez,  together  with  its  pedestal,  and  the 
same  had  been  ready  for  delivery  for  man}'  months.  He  also  states 
that  he  performed  considerable  direct  work  upon  the  statue  of  Liberty 
and  on  the  statue  of  General  Bolivar,  the  model  of  both  statues  being 
completed  and  ready  to  be  cast  in  bronze,  and  that  the  pedestal  for  the 
statue  of  Liberty  was  also  completed;  but  by  reason  of  the  nonpayment 
of  the  moneys,  as  stipulated  in  the  contract,  further  work  on  these 
statues  was  suspended. 

Turini  acknowledges  that  he  had  received  from  the  Government  of 
Venezuela  the  sum  of  $8,130,  gold,  on  account  of  his  contract,  the  last 
payment  having  been  made  in  April,  1897,  by  General  Crespo  (then 
president),  and  being  the  sum  of  $1,850.  Under  the  contract  Turini 
should  have  received  in  April,  1897,  the  sum  of  $20,700. 

In  the  execution  of  the  contract  Turini  incurred  a  liabilitv  to  the 
Gorham  Manufacturing  C'ompany,  and  the  memorialist  affirms  that 
they  had  received  from  him  an  assignment  to  the  extent  of  $I»,000,  of 
the  pa3'^ments  due  him  imder  the  contract,  with  power  to  collect  same. 
Turini  also  affirms  tliat  he  incurred  other  liabilities,  in  and  about  the 
prosecution  of  the  work,  to  Joseph  Carabelli,  amounting  to  $3,p95.97, 
for  which  sum  Carabelli  obtained  an  assignment,  copy  of  which  has 
becMi  submitted  to  this  Commission. 

Margaret  Turini,  as  administratrix  of  Giovanni  Turini,  deceased,  on 
the  27th  of  August,  1899,  addressed  the  Secretary  of  State  of  the 
United  States  of  America.  On  the  11th  of  May,  1903,  a  supplemental 
memorial  was  filed  with  the  Department  of  State,  in  which,  after  mak- 
ing an  exposition  of  the  indebtedness  incurred  by  the  said  Giovanni 
Turini,  in  carrying  out  his  contract  Avith  the  Government  of  Vene- 
zuela; with  the  Gorham  Maiuifacturing  Compan}',  Joseph  Cara])elli, 
and  the  Lj'^ons  Granite  Compan}',  and  other  expenses  incurred  by  said 
Turiin  for  plastei  and  modeling  and  labor,  affirms  that  the  statue  of 


17()  EEPOKT  OF  ROBEKT  C.  MORRIS. 

General  Paez  has  been  cast  in  bronze  by  the  Gorhani  Manufacturing 
Company,  and  since  ISOT  has  been  ready  for  delivery;  that  the  model 
of  the  statue  of  Lil)er(y  is  at  the  factory  of  the  Gorham  Manufactur- 
ing Company,  ready  to  ])e  cast  in  bronze;  that  the  model  for  the  statue 
of  General  Bolivar  was  fidly  completed  by  the  said  Giovanni  Turini 
in  his  lifetime.  That  its  artistic  merits  were  passed  upon  by  the 
nuinicipal  art  commission  of  the  city  of  New  York,  as  appears  by 
letter  of  its  president  to  the  said  Turini,  dated  May  25,  1899.  That 
said  Turini  received  in  all  from  the  Govermuentof  Venezuela  the  sum 
of  $S.18(),  leaving- an  unpaid  balance  amounting  to  the  sum  of  $34,870. 
That  it  has  been  estimated  that  it  would  cost  the  sum  of  about  $11,000 
to  complete  the  statues  of  Li])erty  and  Bolivar,  and  in  case  the  Vene- 
zuelan Govermnent  should  prefer  not  to  have  the  statues  completed, 
deducting  the  sum  of  $11,000  from  the  $34,870,  there  would  be  a  bal- 
ance due  of  $23,870,  to  which  should  be  added  either  interest  thereon 
from  January  1,  1898,  or  the  interest  on  the  said  debts  incurred  to  the 
Gorham  Manufacturing  Company,  Joseph  Carabelli,  and  the  Lyons 
Granite  Company,  which  item  of  interest,  in  the  aggregate,  amounts 
to  the  sum  of  $3",623.36,  and,  added  to  the  said  sum  of  $23,870,  makes 
a  total  sum  of  $27,493.36. 

As  it  appears  from  the  above-stated  facts,  the  points  submitted  to 
the  decision  of  this  Commission  spring  from  the  contract  celebrated 
between  the  Government  of  Venezuela  and  Giovanni  Turini  for  the 
execution  of  certain  sculptorial  works,  and  the  case  must  be  disposed 
of  as  being  that  of  the  administratrix  and  the  heirs  at  law  of  Giovanni 
Turini,  sufficiently  authorized  to  prosecute  this  claim  against  the  Gov- 
ernment of  Venezuela. 

The  assignments  obtained  by  the  Gorham  Manufacturing  Company 
and  Joseph  Carabelli  only  gives  to  the  creditors  the  right  to  collect 
the  amount  of  their  credits  from  what  the  Government  of  Venezuela 
might  have  to  pay  to  the  administratrix  and  heirs  at  law  of  Giovanni 
Turini  for  the  responsibilities  incurred  by  said  Government  by  reason 
of  the  contract  celebrated  with  Turini. 

In  his  answer  the  honorable  agent  of  the  Government  of  Venezuela 
refers  to  the  merits  of  a  memorial  submitted  to  him  by  the  minister  of 
public  works,  containing  the  recital  of  the  facts  recorded  in  his  depart- 
ment in  reference  to  the  above-mentioned  contract  with  Turini  and  the 
sundry  incidents  occurred  thereon.  The  honorable  agent  of  the  United 
States  in  his  replication  admits  that  in  that  memorial  the  statement  of 
facts  is  essentially  in  accord  with  that  made  in  the  brief  submitted  on 
behalf  of  the  United  States  in  this  matter. 

From  the  narrative  of  those  facts  it  appears  that  several  months 
after  the  beginning  of  the  work  which  Turini  undertook  to  execute 
the  Venezuelan  consul  in  the  city  of  New  York,  charged  with  the 
inspection  of  the  statues,  reported  on  June  22, 1897,  to  the  Venezuelan 
Government  that  he  had  seen  the  model  in  cla}^  of  the  statue  of  Boli- 
var uncompleted;  that  they  were  working  on  the  bronze  casting  of  the 
statue  of  Paez,  and  were  making  the  miniature  in  cla^^  of  the  statue  of 
Liberty,  and,  consequently,  he  could  not  judge  of  the  artistic  merits 
and  other  conditions  of  the  works. 

Turini,  on  July  12,  1897,  addressed  a  private  letter  to  the  President 
of  the  Republic,  asking  for  the  payment  of  $10,000  promised  him,  inas- 
much as  to  that  date  there  was  due  him  more  than  $20,000.  This  let- 
ter was  answered  by  the  minister  of  public  works,  who  informed  him 


REPORT  OF  ROBERT  C.  MORRIS.  177 

that  the  President  would  personally  attend  to  his  request  and  would 
give  a  favorable  solution  to  it  as  soon  as  the  financial  situation  would 
allow  it. 

The  terms  of  that  correspondence  proves  sufiiciently  that  the  sus- 
pension of  payment  of  several  monthly  sums  did  not  constitute  a  breach 
of  contract,  because  Turini  did  not  take  the  delay  of  payment  as  a 
resolutory  cause,  nor  did  he  stop  the  execution  of  the  work  for  that 
motive  in  order  to  put  forward  his  claim  against  the  Government  of 
Venezuela.  At  this  stage  of  'events,  and  in  the  month  of  September 
of  the  same  year,  the  Government  of  Venezuela  had  notice  that  the 
National  Society  of  Sculpture  of  the  Cit}"  of  New  York  refused  to  give 
its  approval  to  the  cla}"  model  of  the  liberator's  statue,  and  consequently 
that  the  board  of  parks  of  the  same  city  would  not  give  its  permit  for 
the  erection  of  the  statue  as  then  modeled.  The  Venezuelan  Govern- 
ment having  requested  Turini  to  advise  the  reason  of  the  rejection  of 
the  model,  to  send  information  about  all  the  particulars  pertinent  to 
the  execution  of  the  statues,  and  about  the  report  of  the  National 
Society  of  Sculpture,  he  answered  that  having  invited  the  said  society 
to  examine  the  model  in  clav  of  the  liberator's  statue,  he  was  notified 
one  month  after  that  the  statue  could  not  be  accepted,  but  that  he 
succeeded  in  removing  such  difiiculties  after  speaking  with  Mr.  Strong, 
president  of  the  park  commission,  who  agreed  to  have  the  statue 
accepted,  provided  it  was  an  exact  copy  of  the  original  existing  in 
Caracas;  and  finally,  that  in  that  same  month  he  would  finish  the  new 
model  in  plaster,  and  the  statue  should  not  be  cast  until  approved  b}" 
the  artists. 

The  terms  of  the  official  report  addressed  by  the  National  Society  of 
Sculpture  to  the  board  of  public  parks  of  New  York  reads  as  follows: 

That  the  clay  model  for  the  statue  of  Bolivar,  such  as  it  appears  at  the  sculpture's 
study,  does  not  have  the  conditions  of  artistic  excellence  required  to  he  erected  in  a  public 
place  or  park  of  the  city,  and  consequently  does  not  recommend  its  acceptance. 

After  these  facts  Turini  sent  on  November  20, 1897,  a  demonstrative 
account  of  the  sums  pretended  the  Government  of  Venezuela  owed  him 
for  his  contract,  to  wit: 

Bolivars. 

For  the  statue  of  General  Paez 106, 000 

For  the  statue  of  Liberty 71,  900 

For  the  statue  of  Liberator 50,  000 

Total 227,  900 

From  that  total  sum  Turini  made  the  deduction  of  Bs.  50,000  for 
ino  statue  of  the  Liberator,  he/ng  in  dmiht  (it  that  time  the  acceptance 
of  the  model  by  the  board  of  public  parks  of  New  York  and  having 
to  wait  for  the  Government's  order  to  cast  it  in  bronze.  Turini  also 
stated  that  he  had  received  the  sum  of  Bs.  43,125,  leaving  a  balance  of 
Bs.  134,775  for  the  statues  of  Paez  and  Liberty,  which  he  said  would 
soon  be  finished  and  ready  to  be  delivered  on  board  ship. 

It  was  not  until  May  25,  1899,  that  C.  T.  Barney,  president  of  the 
artistic  municipal  commission,  sent  a  letter  to  Turini,  informing  him 
that  in  session  of  the  day  before  the  Commission  had  approved  the 
new  model  of  the  statue  of  General  Bolivar,  and  on  July  31,  of  the 
same  3'ear,  the  Govermncnt  of  Venezuela  addressed  Turini  in  refercnec 
to  a  note  of  Messrs.  Olney  &  Comstock,  Turini's  attorneys,  about  the 
acceptance  b}'  the  artistic  commission  of  New  York  of  the  modilicd 
S.  Do(;.  317,  58-2 12 


178  KKroKT    OF    KOI5EKT    C.    MORRIS. 

uiodol  of  the  .staluo  of  Bolivar,  and  o'avc  its  conl'orinily  i'or  its  oxocu- 
tion,  Ono  iuon(!i  after  this  authorization,  on  the,  "iTth  day  of  August, 
1890,  Giovanni  Turini  died  in  the  city  of  Now  York,  leavino-  the  statue 
of  General  Paez  cast  in  bronze  by  the  Gorham  Manufacturino-  Com- 
pany and  ready  for  delivery,  with  its  pedestal  constructed  by  Joseph 
Carabelli;  leaving"  also  two  clay  models  of  the  statue  of  Liberty  and  of 
General  Bolivar,  and  a  granite  pedestal  with  inscriptions  thereon  for 
the  statue  of  Lib(>rty,  constructed  l)y  the  Lyons  Granite  Company. 

From  the  aforesaid,  and  a  just  appreciation  of  the  facts,  comes  forth 
the  following  conclusions: 

First.  There  was  no  breach  of  the  contract  on  the  part  of  the  Gov- 
ernment of  Venezuela  ])y  the  nonpayment  of  the  stipulated  monthly 
sums,  as  alleged,  because  Turini,  v/ith  perfect  knowledge  of  that  fact, 
did  not  make  it  a  cause  of  breach  and  pursued  the  execution  of  the 
works,  relying  on  the  promises  which  were  made  to  him  that  the  pay- 
ment of  the  sum  overdue,  in  conformity  with  the  agreement,  should  be 
paid  as  soon  as  the  financial  situation  would  allow  it.  It  must  be 
taken  into  consideration  that  the  price  of  an  artistic  work  is  not  prop- 
erly due  until  iinished  and  accepted  as  satisfactory  by  the  person  who 
ordered  the  execution  of  the  same,  and  that  the  monthly  advances 
offered  to  Turini  on  account  of  the  prices  of  the  statues  were  only  a 
facility  afforded  Turini  in  order  to  help  him  in  the  performance  of  his 
duties,  as  enterpriser,  and  he  was  at  an}^  time  at  liberty  to  renounce 
and  not  take  advantage  of  it. 

Second.  The  incidental  and  very  important  event  of  the  refusal  of 
the  clay  model  of  the  Liberator's  statue  by  the  board  of  public  parks 
of  New  York,  which  took  place  in  August  of  the  year  1897,  having  as 
a  motive  for  such  refusal  the  circumstance  that  the  clay  model  of  the 
statue  of  Bolivar,  such  as  it  appeared  at  the  sculptor's  study,  did  not 
have  the  conditions  of  artistic  excellence  required  in  such  monuments 
to  be  erected  in  a  public  place  or  park,  had  the  consequence  of  inter- 
rupting the  final  execution  of  the  Liberty  and  Liberator's  statues; 
giving  occasion  to  considerable  correspondence  between  the  Govern- 
ment of  Venezuela  and  Turini  about  the  securities  asked  for  by  the 
said  Government  in  reference  to  the  artistic  merits  of  all  the  statues, 
and  was  also  the  cause  of  a  proposition  made  by  Turini  to  the  Vene- 
zuelan Government,  on  November  20,  1897,  to  withdraw  from  the 
whole  amount  of  his  contract  the  sum  of  Bs.  50,000,  price  estimated 
by  him  for  the  statue  of  General  Bolivar,  and  of  an  offer  to  deliver 
the  statues  of  General  Paez  and  Liberty,  all  completed  and  free  on 
board  at  the  port  of  New  Y^ork,  for  the  sum  of  Bs.  131,775,  deduc- 
tion having  been  made  of  Bs.  43,125  already  received  by  him. 

Afterwards,  on  the  22d  of  March,  1899,  another  proposition  was 
made  by  Mr.  Oldrini,  Turini's  attorney,  to  the  Venezuelan  Govern- 
ment, regarding  the  delivery  of  the  statue  of  General  Paez  and  its 
pedestal,  not  on  board,  but  at  the  factory,  and  to  deliver  the  pedestal 
of  the  statue  of  Libert}^  the  clay  model  of  this  last  and  its  casted  parts, 
Turini  keeping  the  clay  model  of  Bolivar's  statue,  all  for  the  sum  of 
$25,000  to  be  paid,  $15,000  cash  down  and  the  balance  in  monthly 
instalments,  without  taking  into  consideration  the  $8,130  already  paid 
to  Turini.  To  this  proposition  the  Government  of  Venezuela  answered 
on  the  2d  day  of  June,  1899,  formulating  a  counter  proposition  to  wit: 
To  pay  $15,000  for  the  statues  of  General  Paez  and  Lil)erty  all  com- 
pleted, in  partial  monthly  payments  of  $3,000  from  the  last  day  of  said 


REPORT  OF  ROBERT  C.  MORRIS.  179 

month  of  June,  This  counter  proposition  was  not  accepted  by  Turini's 
attorneys,  and  on  the  31st  of  July  the  Government  addressed  again 
Messrs.  Ohiey  &  Comstock,  after  the  receipt  of  the  tinal  approval  by 
the  New  York  artistic  commission  of  the  new  clay  model  of  the  statue 
of  General  Bolivar,  requesting-  that  sketches  or  reproductions  of  the 
models  for  the  statues  of  General  Paez  and  Libert^"  be  sent,  for  exam- 
ination as  to  the  artistic  conditions  of  the  one  and  the  other,  in  order 
to  make  a  dehnite  arrangement  about  their  prices  and  payments.  In  the 
meantime  Messrs.  Olney  &  Comstock,  on  behalf  of  Turini,  addressed 
the  Government  of  Venezuela  promoting  the  execution  of  the  contract 
under  the  following  conditions:  That  the  Government  would  accept 
the  three  statues  referred  to  in  the  original  contract  for  the  price  stip- 
ulated of  113,000,  less  $8,130  already  paid,  and  the  balance  of  $31,870 
to  be  paid,  $15,000  cash  down  and  $19,870  in  monthly  payments  of 
$3,000  each.  To  this  last  proposition  the  Government  did  not  give 
any  answer,  and  the  death  of  Turini,  which  occurred  one  month  later, 
on  the  27th  of  August,  1899,  caused  the  whole  affair  to  remam  at  a 
stand  point.  As  this  matter  stood  at  the  time  of  the  death  of  Giovanni 
Turini,  it  is  apparent  that  there  was  not  any  detinite  understanding- 
established  between  the  Government  of  Venezuela  and  Giovanni  Turini, 
neither  about  the  acceptance  of  the  models  for  the  statues  of  General 
Paez  and  Liberty  nor  about  the  price  to  be  paid  for  the  execution  of 
the  same;  there  was  only  an  understanding  for  the  casting  in  bronze 
of  the  statue  of  General  Bolivar  ))y  reason  of  the  acceptance  by  the 
Venezuelan  Government  of  the  moditied  model  executed  ))y  Turini  and 
approved  by  the  president  of  the  municipal  art  commission  of  the  city 
of  New  York. 

Third.  The  death  of  Giovanni  Turini,  which  took  place  before  the 
completion  of  the  statues  of  Liberty  and  General  Bolivar,  is  a  reso- 
lutive cause  of  the  original  contract  between  the  Government  of  Vene- 
zuela and  Turini,  in  reference  to  the  execution  pending  at  the  time  of 
Turini's  death,  of  the  statues  of  Libert}^  and  of  the  Liberator.  That 
resolutive  cause  entitled  the  administratrix  and  heirs  at  law  of  Turini 
to  l)e  paid,  in  proportion  to  the  price  agreed,  for  the  work  done,  and 
for  the  value  of  materials  emplo^'ed  and  expenses  incurred  thereon, 
providing  the  work  done  and  materials  employed  were  of  some  use  to 
the  other  party.  In  reference  to  the  pedestal  for  the  statue  of  Li))erty, 
constructed  by  the  Lj^ons  Granite  Company,  it  is  not  apparent  that 
it  could  be  of  any  use  to  the  Govermuent  of  Venezuela  to  have  it  with- 
out the  statue,  because  in  the  matter  of  statues  the  material  pedestal 
is  of  very  secondary  importance.  The  work  executed  by  Turini  in 
modeling  the  statue  of  Liberty  and  of  the  Liberator,  and  also  the 
expenses  incurred  in  such  works,  which  amounted  to  the  sum  of 
$1,250,  nuist  be  recognized  as  good  title  for  compensation.  For  that 
motive  and  in  consideration  of  the  sum  of  $8,130  received  b}^  Turini 
during  his  lifetime,  on  account  of  the  whole  price  of  the  statues  and 
pedestals,  a  deduction  of  $5,000  nmst  be  made  from  the  $8,130  as 
compensation  for  th(^  personal  woi'k  of  the  sculpture  and  expenses 
incurred  ))y  him  in  the  modeling  of  said  statues,  thus  leaving-  the  sum 
of  $3,130  to  be  disposed  of  as  determined  in  the  following  conclusion 

Fourth.  The  completion  l)y  Giovanni  Turini  of  the  statue  of  (reneral 
Paez  and  its  pedestal,  entitles  the  iidministratrix  and  heirs  at  law  of 
Giovanni  Turini  to  the  payment  of  the  price  of  that  work  by  the 
Government  of  Venezuela,  provided  that  the  sculptural  work  should 


ISO  REPORT  OF  ROBERT  C.  MORRIS. 

1)0  in  pevfoot  accordance  with  the  terms  specified  in  article  5  of  the 
oriuMnal  contract  ])etwcen  the  minister  oP  public  works  of  the  Vene- 
zuehin  (lovernment  and  CJiovanni  Turini,  dated  on  the  28th  of  July, 
ISiHi,  and  l)esides  tliat  the  materials  emplo3^ed  and  the  artistic  execu 
tion  prove  satisfactory,  as  is  necessary  in  all  worlds  of  this  kind. 

The  Commission  not  having-  at  their  disposal  the  necessary  elements 
to  decide  on  these  technical  points,  neither  being  it  in  its  possibility 
to  lix  the  price  for  the  statue  of  (Tcneral  Paez  and  its  pedestal  in  pro- 
portion to  the  full  amount  of  the  contract,  it  is  advisaole  to  refer  both 
parties  in  this  clahn  to  the  following*  decision: 

The  (Tovernment  of  Venezuela  is  not  obliged  to  receive  the  pedestal 
for  the  statue  of  liberty,  nor  to  pay  its  value,  but  a  compensation  is 
granted  in  favor  of  the  administratrix  and  heirs  at  law  of  Giovanni 
Turini,  in  the  sum  of  $5,000,  to  be  deducted  from  the  $8,130  received 
by  the  cujius  for  his  labor  and  the  expenses  incurred  in  modeling  the 
statues  of  libert}^  and  General  Bolivar;  the  clay  models  for  both 
statues  to  become  the  property  of  the  Government  of  Venezuela. 

The  Government  of  Venezula  and  the  administratrix  and  heirs  at 
law  of  Giovanni  Turini  are  bound  to  appoint,  by  mutual  agreement,  an 
expert  or  a  commission  of  three  experts,  named  one  by  each  party  and 
the  third  by  the  two  experts  named.  And  said  expert  or  commission 
will  proceed  to  examine  whether  the  statue  of  General  Paez  and  its 
pedestal  are  constructed  in  accordance  with  the  terms  of  article  6  of 
the  aforesaid  contract,  dated  July  28,  1896,  and  if  they  give  sufficient 
satisfaction  in  regard  to  their  material  and  artistic  merits;  the  com- 
mission will  fix  in  such  case  the  value  of  the  monument  in  proportion 
to  the  total  amount  fixed  in  the  original  contract  for  the  three  statues 
and  the  two  pedestals,  two  of  which  had  to  be  put  on  board  ship  by 
Turini  at  the  port  of  New  York,  and  the  third  one  to  be  erected  at 
Turini's  expense  in  Central  Park,  New  York  City.  After  fixing  in 
such  manner  the  sum  that  the  Government  of  Venezuela  should  have 
to  pay  to  the  administratrix  and  heirs  at  law  of  Giovanni  Turini  for 
the  value  of  the  statue  of  General  Paez  and  its  pedestal,  the  Govern- 
ment of  Venezuela  is  entitled  to  deduct  from  that  price  the  sum  of 
$3,130  as  balance  due  by  the  administratrix  and  heirs  at  law  of  Turini 
on  the  sum  of  $8,130  already  paid  by  the  Venezuela  Government 
during  the  lifetime  of  Turini;  and  the  assignees,  the  Gorham  Manu- 
facturing Company  and  Joseph  Garabelli,  are  entitled  to  exercise 
their  rights  for  collecting  from  the  Government  of  Venezuela  from 
the  balance  due  to  the  administratrix  and  heirs  at  law  of  Giovanni 
Turini,  if  any,  up  to  the  amount  of  $6,319  on  the  part  of  the  Corham 
Manufacturing  ( Company,  and  of  $3,095  on  the  part  of  Joseph  Cara- 
belli.  Any  balance  left  for  the  price  definitely  fixed  by  the  decision 
of  the  experts  to  belong  to  the  administratrix  and  heirs  at  law  of 
Giovanni  Turini. 

In  no  other  way,  it  appears  to  me,  can  this  Commission  dispose  of 
the  claim. 


REPORT  OF  ROBERT  C.  MORRIS.  181 

The  United  States  and  Venezuelan   Claims   Commission,    sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America,  on  behalf  of 

the  administratrix  and  heirs  at  law  of  Giovanni 

Turini,  deceased,   the   Gorham  Manufacturing 

Company,  and  Joseph  Carabelli,  claimants, 

v. 

The  Republic  of  .Venezuela. 


No.  16. 


Doctor  Barge,  xmijnre. 

A  difference  of  opinion  arising  between  the  Commissioners  of  the 
United  States  of  America  and  the  United  States  of  Venezuela,  this 
case  was  duly  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol  and 
also  the  documents,  evidence,  and  arguments,  and  likewise  all  other 
communications  made  by  the  two  parties,  and  having  impartially  and 
carefully  examined  the  same,  has  arrived  at  the  decision  embodied  in 
the  present  award. 

Whereas,  on  July  25,  1896,  an  agreement  was  made  between  the 
secretary  of  public"^ works  of  the  United  States  of  Venezuela,  fully 
authorized  by  the  President  of  the  Republic,  and  Giovanni  Turini, 
sculptor,  citizen  of  the  United  States  of  America,  residing  in  the  city 
of  New  York,  represented  by  Messrs.  J.  Boccardo  &  Co.,  Caracas, 
which  agreement  reads  as  follows: 

Conditions  agreed  upon  between  the  secretary  of  public  W'Orks  of 
the  United  States  of  Venezuela,  fully  authorized  by  the  President  of 
the  Republic,  and  Giovanni  Turini,  sculptor,  residing  at  the  city  of  New 
York,  Dougan  Hill,  Richmond  County,  of  the  United  States  of  North 
America,  represented  by  Messrs.  J.  Boccardo  &Co.,  merchants  of 
this  city,  as  it  will  be  further  stated,  for  the  execution  of  three  statues, 
one  equestrian  of  Gen.  Jose  Antonio  Paez,  another  of  La  Libertad, 
})oth  to  be  erected  in  the  city  of  Caracas,  and  a  third  one,  El  Liberta- 
dor,  destined  to  the  city  of  New  York. 

First.  Giovanni  Turini  binds  himself  to  execute  the  aforesaid  statues 
for  the  amount  of  §43,000  gold,  or  say  Bs.  227,000,  which  is  its  equiv- 
alent at  the  rate  of  exchange  of  (Bs.  5.30)  to  |1,  which  amount  the 
Government  of  Venezuela  will  pay  at  the  city  of  Caracas  to  Turini,  or 
whomsoever  shall  be  authorized  to  represent  him,  in  seventeen  monthly 
payments  of  $2,300  per  month,  or  Bs.  12,190,  and  one  monthly  pay- 
ment besides  of  $3,900,  or  say  Bs.  20,67(>. 

Second.  Giovanni  Turini  names  as  attorneys  with  power  to  repre- 
sent him  in  this  city,  Messrs.  J.  Boccardo  &  Co.,  merchants  of  the 
same;  said  power  accompanies  this  agreement  so  as  to  enable  them  to 
represent  said  Turini  l)eforc  the  National  Government  in  this  ai-range- 
ment,  and  to  collect  the  payments  for  his  account  in  accordance  with 
the  obligations  this  Government  binds  himself. 

Third.  The  first  monthly  payment  will  be  made  at  the  office  of 
Messrs.  J.  Boccardo  &  Co.,'  the'lst  day  of  August  next. 

Fourth.  Turini  binds  himself  to  deliver  the  statue  of  Paez  and  of 
La  Libertad  on  board  ship  at  the  port  of  New  York,  two  months 
before  the  day  set  for  the  inauguration  of  the  same  being  for  the 
first  statue  the  2d  day  of  April,  1897,  and  for  the  2d  the  5tli  day  of 
Julv,  1897. 


182  REPOKT    OF   KOIiERT    C.   MORRIS. 

Fifth.  These  monuments  will  be  made  in  conformit)'^  with  the 
deeree.s  of  the  executive  of  the  ?>d  and  4th  of  fluly  of  the  present  year 
in  reference  to  the  same,  and  also  in  conforniilv  wi(Ii  the  sketches  of 
said  statues  Turini  has  delivered  to  the  secn^tary  of  ])ul)lic  works. 

Sixth.  The  e(][uestrian  statue  of  El  Libertador  which  the  National 
Government  otters  or  presents  to  the  cit}^  of  New  York  to  replace  the 
one  existing  at  present  in  that  city  at  the  Central  Park  will  be  a  replica 
or  copy  of  the  one  erected  to  the  memory  of  the  said  Lil)ertador  in 
the  Plaza  Bolivar  of  this  capital  with  only  one  change,  that  the  dimen- 
sions of  the  one  to  be  built  will  be  one-fourth  larger  than  natural  size. 
The  materials  for  the  pedestal  as  well  as  for  the  statue  will  he  of  the 
same  kind  as  those  used  for  the  afo?"esaid  monument,  which  will  serve 
as  a  model. 

Unique  eovdltlon. — Giovanni  Turini  binds  himself  to  deliver  this 
monument  to  the  representative  of  Venezuela  at  New  York,  who  will  be 
opportunely  named  or  appointed  in  the  course  of  the  month  of  Decem- 
ber, 1897,  said  Turini  binding  himself  also  to  engrave  on  the  pedestal 
the  inscriptions  the  Government  of  Venezuela  may  suggest  to  him. 

Seventh.  Giovanni  Turini  is  under  obligation  to  place  for  his  account 
in  New  York,  and  at  the  spot  that  will  be  designated,  the  statue  of  El 
Libertador. 

Eighth.  In  the  price  of  $43,000  the  freight  from  New  York  to 
Caracas  is  not  included,  nor  the  expenses  for  the  erection  of  the  mon- 
uments to  Paez  and  La  Libertad, 

Ninth.  At  the  time  of  the  shipment  of  the  two  monuments  at  New 
York,  the  Venezuelan  consul  at  that  city  will  have  to  certify  that  the 
same  have  been  properly  executed  and  to  be  in  good  condition  and 
well  packed. 

A  duplicate  copy  of  this  agreement,  both  of  the  same  tenor,  has 
been  drawn  at  Caracas,  the  28th  day  of  July,  1896,  signed  G.  Turini, 
per  J.  Boccardo&  Co.     H.  Perez  B. 

And  whereas  Giovanni  Turini  died  on  the  27th  of  August,  1899,  and 
his  widow,  Margaret  Turini,  who  was  legally  instituted  administratrix 
of  his  inheritance,  brought  a  claim  against  the  United  States  of  Vene- 
zuela, based  on  the  contract  as  cited  here  al)ove,  in  which  claim  the 
Gorham  Manufacturing  Company  and  Joseph  Carabelli,  holding  rights 
as  citizens  of  the  United  States  of  America,  appear  as  intervenors, 
there  must  be  considered  whatever  claims  may  arise  out  of  the  above- 
mentioned  agreement  on  behalf  of  the  heirs  of  Giovanni  Turini. 

And  whereas  it  appears  from  the  evidence  l)rought  before  the  Com- 
mission that  the  Government  of  Venezuela  did  not  fultill  the  conditions 
of  article  1  of  the  agreement,  failing  to  make  the  stipulated  monthly 
payments. 

And  whereas  the  same  evidence  shows  that  Giovanni  Turini  did  not 
fultill  the  conditions  of  article  4  of  the  agreement,  not  having  ready 
for  shipment  at  the  port  of  New  York  on  the  2d  day  of  February, 
1897,  the  statue  of  Paez  with  pedestal,  which  failure  can  not  in  equity 
be  said  to  be  excused  by  the  failure  of  the  Venezuelan  Government  to 
naeet  the  monthly  payments  at  the  time  indicated,  as  this  latter  fact 
did  not  prevent  Turini  from  entering  into  a  contract  with  the  Gorham 
Manufacturing  Company  for  the  casting  in  bronze  of  the  said  statue, 
while  even  in  May,  1897,  it  did  not  prevent  him  from  agreeing  with 
Carabelli  about  the  making  of  the  pedestal  that  should  have  been 
ready  before  February  2  of  that  year. 


REPORT  OF  ROBERT  C.  MORRIS.  183 

And  whereas  the  evidence  clearly  shows  that  neither  of  the  two 
parties  had  the  intention  to  make  this  mutual  failure  a  resolutory 
cause,  but  each  requiring  to  obtain  the  object  of  the  aoreement — Ven- 
ezuela the  statues  according  to  contract  and  Turini  the  payment — both, 
to  meet  the  changed  circumstances,  almost  up  to  the  date  of  Turini's 
death,  interchanged  propositions  for  a  solution  of  the  difficulties  that 
arose  out  of  the  nonfultillment  of  some  conditions  of  the  existing 
contract. 

Whereas  it  is  hereby  clearly:  shown  that  the  original  contract  was  not 
regarded  by  them  legally  dissolved  (annuled)  the  death  of  Turini 
should  in  equity  be  regarded  by  parties  as  the  resolutive  cause,  and 
therefore  the  administratrix  and  heirs  at  law  are  entitled  to  be  paid  in 
proportion  to  the  price  agreed  for  the  work  done,  and  the  value  and 
materials  employed  and  expenses  incurred  thereon,  providing  the 
work  done  and  materials  employed  are  of  some  use  to  the  other  party; 
and  whereas  it  is  proved  that  the  statue  of  Paez  with  its  pedestal  (for 
which  the  sculptor  fixed  $2(),00(},  this  seeming  a  fair  estimate  when 
considering  the  price  established  for  the  three  statutes  in  regard  to  the 
conditions  announced  in  the  decrees  of  their  erection)  had  been  ready 
for  delivery  many  months  before  November,  1898;  that  Turini  had  com- 
pleted the  models  of  the  statues  of  Liberty  and  Bolivar  and  that  the 
pedestal  of  the  statue  of  Liberty  was  also  completed;  that  the  expense 
incurred  for  plaster  and  labor  in  modeling  the  two  statues  of  Liberty  and 
Bolivar  amounted  to  the  sum  of  $1,250  and  that  the  sum  of  $3,500  may 
be  regarded  as  a  just  compensation  for  the  personal  work  of  the  sculptor 
on  both  models. 

And  whereas  the  pedestal  of  Liberty  without  its  statue  can  not  be 
said  to  be  of  any  use  to  the  Government  of  Venezuela,  because  a 
pedestal  has  to  be  regarded  as  being  in  harmony  with  the  figure  placed 
on  it,  and  from  an  artistic  point  of  view,  forming  with  the  statue  one 
whole  monument;  and  whereas  the  statue  of  Paez  with  its  pedestal  as 
well  as  the  models  of  the  statues  of  Liberty  and  Bolivar  certainly  can 
be  of  some  use  to  the  Government  quite  apart  from  the  very  varying 
and  very  personal  opinions  on  their  artistic  value. 

Whereas,  therefore,  the  United  States  of  Venezuela  are  indebted 
to  the  heirs  of  Tunini  for  the  statue  of  Paez  and  pedestal,  $20,000;  for 
making  the  models  of  the  statutes  of  Liberty  and  Bolivar  (which 
models  become  the  property  of  Venezuela),  $3,500;  for  material  and 
labor  in  modeling  these  statues,  $1,250,  making  together  the  sum  of 
$21,750. 

W^hereas,  however,  Turini  during  his  lifetime  already  received  for 
his  work  from  the  Government  of  Venezuela  the  amount  of  $8,130,  the 
Venezuela  Government  owes  the  inheritance  of  Turini  the  sum  of 
$10,620  with  interest  at  3  per  cent  per  annum  from  the  1st  of  January, 
J  898,  the  date  on  which,  according  to  the  agreement,  the  money  was 
due,  until  the  31st  of  December,  1903,  the  anticipated  date  of  the 
final  award  bv  this  Commission,  making  together  the  sum  of  $19,611.00, 
which  sum  is  therefore  allowed  to  the  administratrix  and  heirs-at  law 
of  Giovanni  Turini,  deceased. 

And  whereas,  further,  at  the  time  of  Turini's  death  the  estate  was 
and  still  is  liable  for  the  following  del)ts,  which  were  incurred  by  him 
in  carrving  out  his  agreement  as  to  the  statue  of  Paez,  viz: 

(1)  To  the  Gorhani  Manufacturing  Company  the  sum  of  $6,319,  with 
interest  thereon  at  0  per  cent  per  annum  from  July  1, 1897. 


184  REPOKT  OF  ROBERT  0.  MORRIS. 

(2)  To  Joseph  Carabelli  the  sum  of  $3,095,  with  interest  thereon  at 
G  per  cent  per  annum  from  October  22,  1S98. 

The  above-named  partie.s,  intervenors  in  this  claim,  should  be  pro- 
tected to  the  extent  of  their  proportionate  interest  in  the  distribution 
of  the  award  herein  made  to  the  estate  of  (riovanni  Turini,  deceased. 

The   Inited  States  and  Veuezuela  Claims  Commission,  sitting'  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  ))ehalf  of  Marga- 
ret Turini,  administratrix  of  the  estate  of  Giovanni  Turini,  deceased, 
claimant  against  the  Republic  of  Venezuela,  No.  16,  the  sum  of  nine- 
teen thousand  six  hundred  eleven  and  601 00  dollars  in  United  States 
gold  coin  is  hereby  awarded  in  favor  of  said  claimant,  which  sum  shall 
be  paid  b}^  the  Government  of  Venezuela  to  the  Government  of  the 
United  States  of  America  in  accordance  with  the  provisions  of  the 
convention  under  which  this  award  is  made. 

Harry  Barge,  Umjjire. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  'part  of  the 

United  States  of  America. 

Delivered  August  21,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America,  on  behalf 
of  Margaret  Turini,  as  administratrix  of 
Giovanni  Turini,  claimant,  \  No.  17. 

V. 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Margaret 
Turini,  as  administratrix  of  Giovanni  Turini,  to  recover  the  amount 
due  her  as  such  administratrix  under  a  contract  made  by  the  Govern- 
ment of  Venezuela,  with  a  partnership  of  which  the  deceased  was  a 
member.  The  petitioner  is  and  her  deceased  husband  was  a  citizen  of 
the  United  States.  The  claim  arises  under  the  following  circum- 
stances: On  the  6th  da}^  of  November,  1896,  the  Government  of  Vene- 
zuela, by  its  proper  official,  entered  into  a  contract  with  G.  Turini  & 
Co.,  w^hich  contract  was  duly  published  in  the  Official  Gazette  of 
November  7,  1896,  a  copy  of  which  is  presented  with  the  memorial. 
This  contract  called  for  the  construction  of  certain  public  works  in  or 
near  Caracas  at  an  agreed  compensation.     Subsequentl}^,  on  December 


REPORT  OF  ROBERT  0.  MORRIS.  185 

21,  1898,  such  contract  was  rescinded  b}^  an  agreement  between  the 
said  tirni  and  the  Government,  the  hitter,  the  (jovernment  of  Venezu- 
ela, aoreeino-  to  pa}'  said  partnership  the  sum  of  22,50-1.60  boUvares  in 
instaUments  in  full  payment  and  satisfaction  of  the  work  which  had 
been  done  under  the  contract. 

The  partnership  consisted  of  Griovanni  Turini  and  General  Paul 
— who  had  an  equal  share  therein — and  one  Heridia,  who  had  a  lim- 
ited interest  in  the  profits  only.  The  memorial  alleg-es  that  the  amount 
due  under  this  agreement  of  j^ettlement  has  not  all  been  paid,  and  the 
claim  is  for  a  recover}^  of  the  interest  of  the  deceased  in  the  amount 
unpaid  upon  this  ag'reement  of  settlement. 

The  only  possible  question  that  there  can  be  in  this  case  is  as  to  the 
amount  which  is  still  due  on  the  contract  of  December  21,  1898,  set- 
tling and  agreeing  to  pay  an  agreed  compensation  for  work  done 
under  the  previous  contract. 

There  can  be  no  question  as  to  the  claimant's  right  to  recover  the 
share  of  the  deceased,  intestate,  in  whatever  amount  is  still  due  from 
the  Government  of  Venezuela  on  this  contract. 

The  Government  of  Venezuela  should  in  this  case  be  compelled  to 
disclose  the  amounts  which  have  been  paid  to  the  other  members  of 
this  partnership  on  account  of  this  agreed  amount,  and  an  award 
should  be  made  in  favor  of  the  claimant  for  her  share  as  administra- 
trix in  any  unpaid  amount. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Margaret  Turini.     Claim  No.  17. 

Honorcible  members  of  the  Venezuelan- American  Mixed  Commission : 

The  undersigned,  the  agent  of  the  United  States  of  Venezuela,  has 
studied  the  claim  presented  by  Margaret  Turini  in  her  capacity  of  heir 
ab  intestato  of  Giovani  Turini,  arising  out  of  a  contract  entered  into 
in  the  year  1896  between  her  predecessor  in  interest  and  the  minister 
of  public  works;  and  he  respectfully  shows  to  the  trilninal: 

In  the  present  case  the  facts  set  forth  in  the  brief  of  the  honorable 
agent  of  the  Government  of  the  United  States  are  from  every  stand- 
point true,  and  the  right  of  the  claimant  appears  to  be  proved  from 
the  documents  which  the  undersigned  produces,  marked  A,  B,  and  C 
Tiiereforc  the  Government  of  Venezuela  acknowledges  the  obliga- 
tion which  results  to  pay  to  the  claimant  the  sum  of  5,250  bolivars, 
which  belong  to  Giovani  Turini  by  virtue  of  the  contract  entered  into 
between  him  and  the  minister  of  public  works  on  the  21st  of  Decem- 
ber, 1898,  and  in  accordance  with  the  contract  which  the  said  Turini 
had  with  Messrs.  Paul  and  Ileredia,  a  copy  of  which  has  been  pre- 
sented. 

Caracas,  July  8,  1903. 

(Signed)  V.  Arroyo  Parejo. 

Translator's  note. — As  this  claim  was  admitted  by  the  Govern- 
ment of  Venezuela  there  has  been  no  translation  of  the  accompanying 
documents  made. 


186  REPORT  OF  ROBERT  C.  MORRIS. 

lu'fon'  tho  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1!)03,  l)etween  the  United  States  of  America 
and  the  Itepuhlic  of  Venezuela. 

TiiK  United  States  of  America  on  behalf] 
of  Maroiiret  Turini,  as  administratrix  of  | 
Giovanni  Turini,  c-hiiniant,  \-  No.  17. 

The  Republic  of  Venezuela.  | 

ADDITIONAL  STATEMENT  OF  FACTS  ON  BEHALF  OF  THE  UNITED 

STATES. 

Since  the  submission  of  the  memorial  and  documents  of  this  case  to 
this  honorable  C/ommission  the  ao-ent  of  the  United  States  has  had  sub- 
mitted to  him  the  documents,  hereto  attached,  consisting  of  the  trans- 
lation of  a  contract  entered  into  between  Mr.  Giovanni  Turini  and 
Jose  de  Jesiis  Paul  and  a  statement  as  to  the  amount  due  from  the 
Venezuelan  Government. 

As  will  be  seen  from  the  contract  Mr.  Turini  was  to  have  received 
one-half  of  the  profits  of  the  enterprise.  The  work  was  stopped  and 
a  settlement  had  with  the  Government  of  Venezuela,  which  resulted 
in  the  issuance  of  an  order  on  the  Bank  of  Venezuela  for  the  pajanent 
of  Bs.  22,564.60,  pa3'able  in  monthl}^  installments  of  Bs.  1,500  each. 
Twelve  thousand  bolivars,  or  eight  monthly  installments  were  duly  paid 
on  this  order,  and  Mi'.  Turini  received  his  share  of  the  amount. 

In  the  statement  submitted  it  will  be  seen  that  payments  ceased  in 
the  month  of  August,  1899,  and  that  no  further  payment  has  been 
made  on  account  down  to  the  18th  of  June  of  the  present  3'ear.  The 
account  submitted  by  the  partner  of  Mr.  Turini  shows  a  sum  due  to 
one  Atalmalpa  Heredia  of  64.60  bolivars.  The  account  therefore  may 
be  stated  as  follows: 

Bolivars. 

Amount  of  original  order 22,  564.  60 

Received  on  account 12, 000.  00 

Balance  due  Turini  &  Co 10,  564.  60 

Due  Atalmalpa  Heredia 64.  60 

Remainder 10, 500.  00 

Of  this  10,500  bolivars  the  administratrix  of  Mr.  Turini  is  entitled 
to  receive  5,250  bolivars. 

The  Government  of  the  United  States  therefore  asks  that  an  award 
l)e  made  in  favor  of  the  claimant  for  5,250  bolivars,  with  interest  at  the 
legal  rate  of  3  per  cent  from  the  date  of  the  last  payment. 
Respectfully  submitted, 

Robert  C.  Morris, 
Agent  of  the  United  States. 


REPORT  OF  ROBERT  C.  MORRIS.  187 

The   United   States  and  Venezuelan  Claims  Connnission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of  Margaret  Turini,  as  administratrix  of  | 
Giovanni  Turini,  claimant,  \-  No.  17. 

V. 

The  Republic  of  Venezuela. 

Commission: 

As  it  appears  from  the  documents  submitted  to  the  Commission  by 
the  honorable  agents  of  the  respective  Governments  that  the  evidence 
is  in  accord  with  the  facts  in  the  case,  the  claim  is  allowed  in  full,  with 
interest  from  August  31,  1899. 

The  facts  in  the  case  are,  brietl}",  as  follows: 

On  the  6th  da}'  of  November,  1896,  the  Venezuelan  Government 
executed  a  contract  with  G.  Turini  &  Co.,  a  partnership  consisting  of 
Giovanni  Turini  and  Gen.  J.  de  J.  Paiil,  for  the  construction  of  cer- 
tain public  works  in  the  city  of  Caracas,  and  subsequentl}'  this  con- 
tract was  rescinded  b}'  mutual  agreement,  and  the  said  Government  of 
Venezuela  agreed  to  pa}"  said  partnership  the  sutn  of  22, .561. 60  bolivars, 
in  installments,  in  full  payment  and  satisfaction  of  the  work  which 
had  been  done  under  the  contract. 

Under  the  terms  of  the  agreement  of  partnership  entered  into  by 
Turini  &  Paul,  Turini  was  to  receive  one-half  of  the  profits  of  the 
enterprise. 

In  execution  of  the  obligation  incurred  by  the  Government  of  Ven- 
ezuela, an  order  was  issued  in  favor  of  Gen.  J.  de  J.  Paiil,  as  attorney 
for  Turini,  on  the  Bank  of  Venezuela,  for  the  payment  of  22,561.60 
bolivars,  payable  in  monthly  instalments  of  1,500  bolivars  each. 
Twelve  thousand  bolivars,  or  eight  monthly  instalments,  were  paid  on 
this  order  by  the  bank,  and  Mr.  Turini,  during  his  lifetime,  received 
his  share  of  this  amount.  The  payments  ceased  in  the  month  of 
August,  1899,  and  no  further  payment  has  been  made  down  to  the  3d 
of  July  of  the  present  year,  as  is  proven  by  the  statement  of  the 
president  of  the  Bank  of  Venezuela,  submitted  to  the  Commission  by 
the  honoraV)le  agent  of  the  Venezuelan  Government. 

Tlie  honorable  agent  of  the  United  States  admits  in  his  additional 
statement  of  facts,  filed  the  Tth  of  July,  1903,  that  the  account  sub- 
mitted by  the  partner  of  Turini  shows  a  sum  due  to  one  Atalmalpa 
Heredia,  of  61.60  bolivars;  the  account  may  therefore  be  stated  as 
follows: 

Bolivars. 

Amount  of  tlic  original  order  on  the  Bank  of  Venezuela 22,  564.  60 

Received  on  account  from  the  bank 12, 000. 00 

Balance  due  Turini  &  Co 10,  564.  <)0 

Due  Atalmalpa  Ileredia 64.  60 

Remainder 10,  500.  00 

Of  this  sum  of  10,500  })olivars  the  administratrix  of  Giovanni 
Turini  is  entitled  to  receive  one-half. 

In  cons('(iuenc(>,  i\ni  Commission  makes  an  award  in  favor  of  Mar- 
garet Turini,  as  administratrix  of  Giovanni  Turini,  in  the  sum  of 
6,250  bolivars,  with  interest  at  th(;  legal  rate  of  3  per  cent  per  annum 


188  REPOKT  OF  ROBERT  C.  MORRIS. 

from  the  date  corresponding  to  the  last  payment,  August  31,  1899,  to 
the  ^Ist  of  noceinbcr,  1!)08,  the,  anticipated  date  of  the  linal  award 
by  thisConuuis^ion,  niakin*iin  all  the  sum  of  5,9;^2.5(>  l)()livars,  wliich, 
at  the  rate  of  exchange  agreed  upon,  makes  the  sum  of  $1,140.S(> 
United  States  gold. 

The    United    States   and   Venezuela   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

in  re  the  claim  of  the  United  States  of  America  on  behalf  of 
Margaret  Turini,  as  administratrix  of  Giovanni  Turini,  claimant, 
against  the  Republic  of  Venezuela,  No.  17,  the  sum  of  one  thousand 
one  hundred  and  forty  and  86  100  dollars  (11,110.86)  in  United  States 
gold  coin  is  herel)y  awarded  in  favor  of  said  claimant,  which  sum  shall 
be  paid  bj^  the  Government  of  Venezuela  to  the  Government  of  the 
United  States  of  America  in  accordance  with  the  provisions  of  the 
convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
CoTnmissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  imrt  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  Part  of  Venezuela. 
Rudolf  Dolge, 

Secretarij  on  the  part  of  the  United  States  of  America. 

Delivered  August  7,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  on  behalf  of  Henry  R. 
Kuhnhardt,  George  W.  Kulhke,  and  Franz 
Mueller,  partners  as  Kuhnhardt  &  Co.,  claim-  ,  a^     ^  o 
ants, 

V. 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claims  of  Kuhnhardt  & 
Co.,  one  for  damages  in  the  sum  of  116,875,  arising  from  the  attempted 
cancellation  of  the  Encontrados  contract  and  concession;  the  other 
for  damages  to  the  estate  of  El  Molino,  in  the  amount  of  119,211.91. 

The  claimants  Kuhnhardt  and  Kulhke  are  native-born  citizens  of 
the  United  States,  and  the  claimant  Mueller  is  a  duly  naturalized  citi- 
zen of  the  United  States. 


repoet  of  robert  c.  morris-  189 

First  Claim. 
I. 

STATEMENT   OF    FACTS. 

The  claim  presented  in  the  first  memorial  arises  from  a  contract 
made  on  the  24th  of  February,  1897,  between  the  minister  of  public 
works  of  the  United  States  of* Venezuela,  under  due  avithority  from 
his  Government,  and  one  Joaquin  V.  Urquineona,  granting  a  conces- 
sion for  the  erection  and  maintenance  of  a  wharf,  and  the  right  to  col- 
lect tolls  at  the  port  of  Encontrados.  Said  contract,  by  due  assign- 
ment, became  the  property  of  a  company  known  as  the  Compania 
Anonima  Transportes  en  Encontrados,  with  a  capital  of  300,000  boli- 
vars, divided  into  400  shares  of  750  bolivars  each,  of  which  400 
shares  the  claimants  are  the  owners  of  325.  The  erection  of  the  wharf 
and  other  work  required  b}"  the  contract  was  duly  performed,  and  in 
1898,  after  examination  by  proper  government  officials,  the  work  was 
approved  and  properly  certified  to,  and  accepted  on  behalf  of  the  Gov- 
erntnent,  and  the  performance  of  the  contract  was  recognized. 

Notwithstanding  this  fact,  on  November  15,  1900,  the  National 
Executive  of  the  Republic  adopted,  without  notice  to  the  claimants  or 
to  the  company,  are  solution  canceling  this  concession,  whereupon  the 
Government  of  Venezuela  took  possession  of  said  wharves  and  has 
since  retained  possession  thereof  and  collected  all  the  tolls. 

II. 

Tlie  Government  of  Venezuela  is  liable  to  respond  in  damages  for  the 
value  (f  the  property  taken. 

There  can  be  no  question  that  the  decree  of  November  15,  1900,  did 
not  confer  upon  the  Venezuelan  Government  any  right  to  take  posses- 
sion of  this  wharfage  property  and  destro}^  the  rights  of  the  company. 
Not  only  had  full  performance  of  the  contract  been  previously  prop- 
erl}'  certified  to  and  approved,  but  such  decree  without  notice  to  the 
persons  whose  property  was  about  to  l)e  taken  nor  an  opportunity  on 
their  part  to  appear  and  defend,  is  absolutely  nugatory  and  of  no 
binding  force  or  effect  whatsoever.  The  necessity  of  notice,  in  order 
to  give  any  decree  or  judgment  any  validity  whatsoever,  is  a  basic  prin- 
ciple of  law  and  natural  right,  too  well  established  to  need  discussion. 
The  right  of  recovery  in  such  a  case  has,  moreover,  been  expressly 
recognized.  See,  among  others,  the  Cheek  claim,  reported  in  the  sec- 
ond volume  of  Moore's  International  Arbitrations,  pages  1899  et  scq., 
in  which  case  the  right  to  recover  damages  arising  from  such  unwai-- 
rantcd  rescission  of  a  Government  contract  was  considered  and  the 
claimant's  right  to  recover  sustained.     (See  note  on  page  1908.) 

The  liability  of  the  Government  of  Venezuela  for  damages  in  a  case 
such  as  this  is,  moreover,  expr(>ssly  sustained  by  the  recent  opinion  of 
Sir  Henry  Strong  and  Don  M.  Dickinson,  in  the  matter  of  "■  ElTriumfo 
Company,  Limited,"  upon  an  arbitration  between  the  Republics  of  the 
United  States  of  America  and  Salvador,  in  which  case  the  general  rule 
of  international  law  was  laid  down  to  be  that,  where  a  government  is 
itself  a  party  to  a  contract,  it  can  not  itself  annul  that  contract,  but 


190  REPORT  OF  ROBERT  C.  MORRIS. 

niiust  have  recourse  to  due  process  of  judicial  proceeding's  involving 
notice,  opportunity  to  be  heard,  consideration,  and  judomcnt,  and 
must  either  invoke  or  secure  the  remedy  sought;  and  tliat  if,  without 
taking  such  proceedings,  it  arl)itrarily  and  without  a  hearing  arrogates 
the  right  to  condemn  the  other  party  to  the  contract  and  forfeit  liis 
rights  under  it,  it  becomes  liable  in  damages  for  all  injuries  sustained 
by  such  other  party. 

III. 

Tlu-  elaliiunits  have  a  riglii  to  present  theclahii  as  stockholders  of  the 
comj:a7}y. 

The  company  in  this  case  in  Jaruiary,  1901,  filed  a  protest  with  the 
Venezuelan  Government,  but  no  attention  seems  to  have  been  paid  to 
it.  The  claim  of  the  claimants  is  based  upon  the  fact  that  by  taking 
away  all  the  property  of  the  corporation,  the  Venezuelan  Government 
absolutely  destroyed  the  value  of  the  stock  held  by  the  claimants,  g'iv- 
ing  the  claimants,  therefore,  as  citizens  of  the  United  States,  a  dii-cct 
claim  against  the  Government  of  Venezviela.  Their  claim  is  not  a 
claim  against  the  corporation,  although  they  are  stockholders  in  that 
corporation,  for,  by  the  act  of  the  Venezuelan  Government,  that  cor- 
poration has  been  deprived  of  the  power  to  liquidate  its  obligations  to 
the  stockholders.  The  language  of  the  protocol  in  this  case  includes 
the  right  to  present  to  this  commission  all  claims  of  citizens  of  the 
United  States,  and  this  should  certainl}^  include  the  claim  of  the  stock- 
holders in  this  case,  for  by  no  other  course  than  by  a  direct  claim 
against  the  Venezuelan  Government  that  produced  the  injury  can  they 
have  any  relief. 

This  right  of  American  stockholders  in  a  foreign  corporation  to 
present  their  claims  against  a  government  which  has  destroyed  the 
property  of  such  corporation  is,  moreover,  expressly  recognized  by 
the  opinion  of  Sir  Henry  Strong-  and  Don  M.  Dickinson  in  the  El 
Triumfo  case  above  referred  to. 

IV. 

An  award  should  l)e  made  f 07'  the  full  amount  <f  the  first  claim. 

The  d(^struction  of  the  property  having  ])een  occasioned  by  the  illegal 
acts  of  the  Venezuelan  Government  itself,  the  right  to  relief  is  clear, 
and  the  property  having  been  absolutely  destroyed,  that  relief  should 
be  for  the  full  value  of  the  stock. 

Secom)  Claim. 

I. 

STATEINIEXT   OF   FACTS. 

The  second  claim  is  based  upon  the  facts  that  the  claimants  owned 
certain  real  estate  in  the  State  of  Lara,  in  the  Republic  of  Venezuela, 
used  for  raising  sugar  cane  and  manufacturing  sugar  and  in  raising 
corn  fodder  and  cattle;  that,  in  December,  1899,  certain  troops  of 
General  Castro,  w' ho  was  at  the  time  and  still  is  the  President  of  Vene- 
zuela, under  the  immediate  command  of  General  Lara,  took  possession 
of  claimant's  estate  and  seized  for  rations  the  cattle  and  crops  and' 


REPORT  OF  ROBERT  C.  MORRIS.  191 

destroyed  other  property.  An  appraisement  of  the  value  of  the  prop- 
erty- taken  by  the  Venezuelan  troops  in  this  way  was  duly  made,  under 
judicial  supervision,  at  the  sum  of  §15,750.  Furthermore,  since  that 
time  it  has  been  impossible  for  claimants  to  occupy  said  estate  or  work 
the  same  on  account  of  the  state  of  civil  disturbance  which  the  Govern- 
ment of  Venezuela  has  wholl}^  failed  to  suppress,  causing  a  damage  to 
them  in  the  sum  of  $3,054.33. 

And  there  has  been  a  further  damage  to  said  estate  stated  in  a  sup- 
plemental memorial  of  the  claimant,  during  the  years  1902  and  1903, 
amounting  to  $1,1:07.61,  arising  from  tlie  same  state  of  facts  as  above 
mentioned. 

II. 

The  acts  comjylained  of  are  cleai'ly  supported  hy  the  evidence^  and  are 
acts  for  which  the  Government  of  Venezuela  is  responsible. 

The  evidence  as  to  the  property  taken  by  the  Government  troops, 
its  value,  and  the  subsequent  impossibility  of  working  this  estate,  is 
clear  and  apparent!}'  beyond  contradiction.  The  acts  complained  of 
were  done  by  the  Government  troops,  under  the  direct  authorit}'  and 
under  the  supervision  of  their  officers.  There  can  be  no  question  as 
to  the  liability  of  the  Government  in  such  case.  (See  the  rule  of 
international  law  in  this  respect  laid  down  in  Moore's  International 
Arbitrations,  vol.  3,  pp.  2952  and  2953,  and  the  cases  collected  in  vol. 
1,  pp.  3714  et  seq.) 

The  property  taken  in  this  case  was  taken  for  the  use  and  support 
of  the  Government  troops,  and  under  the  authorities  there  can  be  no 
question  as  to  the  liability  of  the  Government  to  render  compensation 
for  the  value  of  the  propertj^  so  taken.  The  same  is  true  as  to  so 
much  of  the  property  as  ma}^  be  said  to  have  been  destroj^ed  and  not 
taken.  (See  the  rule  laid  down  in  Shrigley's  case,  4th  Moore's  Inter- 
national Arbitrations,  pp.  3711  and  3712.) 

The  claim  for  loss  arising  from  inability  to  work  the  property  is 
also  clearl}'  a  claim  for  which  the  Venezuelan  Government  is  respon- 
sible. It  was  its  duty  to  suppress  internal  disorders  and  maintain  such 
a  state  of  peace  that  citizens,  as  well  as  foreigners,  could  peacefully 
use  and  possess  their  property.  There  was  not,  during  this  period, 
an}'  state  of  war;  simply  local  disturbances  which  the  Venezuelan 
Goveriuncnt  had  ample  power  to  suppress,  and  it  is  liable  for  this 
failure  to  do  so. 

III. 

An  avmrd  sJcould  he  inadefor  the  full  amount  of  this  second  claim. 

The  loss  complained  of  being  the  result  of  acts  for  which  the  Vene- 
zuelan Government  is  clearly  responsible,  the  amount  of  the  damage 
being  clearly  established  })y  the  evidence,  an  award  should  be  made 
for  the  full  amount. 

We  submit,  therefore,  that  in  this  case  an  award  should  be  made 
against  the  Govermnent  of  Venezuela  for  the  full  amounts  set  forth 
in  the  memorials. 

KespectfuUy  submitted. 

Robert  G.  Morris, 
Agent  of  the  Unified  States, 


192  REPOKT  OF  ROBERT  C.  MORRIS, 

[TmnsliitiDii.] 

ANSWER. 

Claim  of  Kunhardt  &  Co.,  No.  IS. 

Hon  oral)/ e  memhers  of  the  Venezuelan- American  Mixed  CoinmisHion: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  papers  submitted  in  the  claim  presented  ])y 
Messrs.  Kunhardt  &  Co.,  and  respectfully  states  to  the  tribunal: 

Messrs.  Kunhardt  &  Co.  claim  $46,S75  on  account  of  the  value  of 
shares  of  stock  in  the  Corporation  of  Trasportes  de  Encontrados,  of 
which  they  say  they  are  the  holders,  and  $19,211.94  on  account  of  dam- 
ages caused  by  the  troops  of  the  revolution  which  Gen.  Cipriano  Castro 
commanded  in  the  year  1899  upon  a  plantation  called  "El  Molino," 
which  was  the  property  of  the  claimants. 

The  first  of  the  claims  enumerated  is  unfounded  in  every  aspect. 
As  appears  from  the  documents  produced  by  the  claimants  themselves, 
the  Corporation  Trasportes  de  Encontrados  was  organized  in  April, 

1899,  by  Bernardo  Tinedo  Velasco,  Rafael  Tinedo,  Carlos  Rodriguez, 
Emilio  MacGregor,  Jose  Vte.  Matos,  Joaquin  Valbuena  U.,  Amilcar 
Valbuena,  Manuel  Garbiras,  and  Joaquin  Osorio  Negron,  all  citizens 
of  Maracajbo.  It  does  not  appear  that  the  claimants  were  in  any  man- 
ner interested  in  its  organization  and  constitution;  if  later  on  the}^ 
became  the  owners  of  various  shares  of  stock  issued  to  bearer  by  said 
compan}^  it  was  a  voluntary  act  on  their  part. 

If  on  account  of   the  ministerial  resolution,  which  in  November, 

1900,  declared  the  concession  which  the  aforesaid  company  exploited 
annulled,  anj^  claim  covild  arise  against  Venezuela,  it  is  clear  that  only 
the  managers  of  it,  or  its  receivers  in  case  of  its  dissolution,  should 
institute  a  suit  for  its  recovery.  To  argue  in  a  contrary  sense  would 
be  to  encourage  a  vicious  speculation.  In  eJS'ect  the  claimants,  taking- 
advantage  of  their  status  as  foreigners,  would  be  able  to  recover 
monej's  to  the  injur}"  of  the  other  stockholders  of  the  company,  who 
were  not  in  the  same  categor3^ 

The  date  Avhen  they  acquired  the  stock  is  not  proven,  nor  is  it  proven 
that  they  were  ignorant  of  the  social  conditions;  it  is,  therefore,  pre- 
sumable, at  least,  that  they  wished  to  take  advantage  of  their  position 
as  foreigners  in  order  to  institute  extraordinary  measures  which  were 
not  available  to  their  Venezuelan  associates. 

Before  a  tribunal  of  equity,  such  as  this  is,  these  considerations 
ought  to  prevail. 

SECOND   CLAIM. 

The  foundation  of  this  second  claim  is  sought  to  be  proven  by  means 
of  depositions  which  are  to  be  found  amongst  the  papers.  It  ought  to 
be  noticed  that  the  witnesses  do  not  affirm  the  existence  upon  the  ranch 
"El  Molino"  of  all  of  the  animals  which  are  said  to  have  been  carried 
off  by  the  troops  and  that  no  mention  of  them  is  made  in  the  deeds  of 
sale  by  l)e  Garmendia  to  the  claimants.  There  is  no  doubt  but  that  the 
latter  suffered  some  injuries  to  their  property  but  such  damages  were 
necessary  incidents  of  the  operations  of  war  and  can  not  therefore 
establish  the  responsibility  of  the  Government  of  Venezuela  accord- 
ing to  the  principles  of  international  law. 


REPORT  OF  ROBERT  C.  MORRIS.  193 

The  tribunal  will  observe  besides,  that  the  witness  Pablo  Anzola 
Casorla,  formerly  manager  of  the  property  of  Garmendia,  and  in 
whose  name  the  deed  of  sale  for  the  property  ''  El  Molino"  was  exe- 
cuted to  the  claimants,  made  a  reservation  with  respect  to  the  damages 
suffered  and  the  animals  carried  off.  Notice  should  be  taken  of  this 
reservation,  since  this  witness  was  capable  of  forming  a  very  exact 
estimate. 

Neither  has  the  extent  of  the  damages,  which  the  claimants  allege 
that  they  suffered  been  proved  either,  since  no  judgment  of  experts 
has  been  taken. 

For  all  the  reasons  set  forth,  both  claims  ought  to  be  disallowed. 

Caracas,  July  9,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  Henry  R.  Kuhnhard,  George  W.  Kulke, 
and  Franz  ^Mueller,  partners  as  Kuhnhardt  cS;     ^r     -,  q 
Co.,  claimants,  f"^^-  ^^• 

V. 

The  Republic  of  Venezuela.  J 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

The  answer  of  Venezuela  to  the  claim  of  Messrs.  Kunhardt  &  Co., 
arising  out  of  an  annulment  of  a  concession  on  the  part  of  the  Govern- 
ment of  Venezuela  for  the  Compania  de  Trasportes  en  Encontrados, 
insists  on  two  points:  First,  that  the  claimants  have  not  a  right,  as 
stockholders  of  this  corporation,  to  maintain  an  action  and  that  a  suit 
can  alone  be  ))rought  on  behalf  of  the  managers  of  the  company;  and, 
second,  that  there  is  no  date  given  when  the  shares  of  stock  were 
acquired  b}'  Messrs.  Kunhardt  &  Co.,  and  that  it  is  therefore  pre- 
sumable that  they  bought  said  stock  as  a  speculation  with  a  view  to 
enforce  a  claim  against  the  Government  of  Venezuela  on  account  of 
the  damages  sustained. 

{(i)  The  United  States  Government  considers  that  the  position 
assumed  by  Venezuela  that  the  stockholders  are  incapable  of  main- 
taining an  action  for  the  recovery  of  damages  on  account  of  the  annul- 
ment of  the  concession  before  mentioned  is  not  well  taken.  In  this 
respect  we  call  the  attention  of  the  honorable  Commission  to  the 
decision  rendered  in  the  matter  of  the  arbitration  between  the 
Republics  of  the  United  States  and  Salvador  with  respect  to  ''El 
Triumfo  Company,  Limited,"  already  cited  in  the  brief  submitted  on 
behalf  of  the  United  States  in  this  matter,  and  to  the  well-known 
Delagoa  Bay  Railway  case  to  be  found  in  the  Moore's  International 
Arbitration  at  page  1S6.5,  et  seq. 

The  status  of  those  claimants  is  the  same  as  that  of  the  "El  Triumfo 
Company,  Limited.''  in  which  an  award  was  rendered  in  favor  of  the 
claimant. 

S.  Doc.  :^17,  oS-2 Ki 


194  REPORT  OF  ROBERT  C.  MORRIS. 

{!))  As  to  the  soc'oiul  \yo\ut  iimde  by  the  agent  of  Venezuela  that — 

the  date  when  they  acquired  the  stock  is  not  proven,  nor  is  it  proven  that  they  were 
ignorant  of  tlie  social  conditions;  it  is  therefore  presumable,  at  least,  that  they  wished 
to  take  advantage  of  their  position  as  foreigners  in  order  to  institute  extraordinary 
measiures  which  were  not  available  to  their  Venezuelan  associates — 

we  present  herewith  ;in  affidavit  signed  by  II.  P.  de  Vries,  the  attorney 
in  fact,  for  Kunhardt  &  Co.,  to  the  effect  that  the  date  of  acquiring  the 
shares  of  stock  in  the  Compafiia  Anoninia  do  Trasportes  en  Encontrados 
was  at  least  four  months  prior  to  the  injury  sustained  by  said  compan}'. 
We  submit  that  there  can  be  no  presumption  here  that  the  claimants 
could  have  foreseen  the  arbitrar}'  act  on  the  part  of  the  Venezuelan 
Government  in  annuling  the  concession  granted  to  this  company.  The 
eyidence  in  this  case  is  full  and  conclusive  and  an  award  should  be 
made  for  the  amount  claimed. 

II. 

With  respect  to  the  second  claim  of  Kunhardt  &  Co.,  arising  out 
of  damages  done  to  the  ranch  "El  Molino,"  the  Venezuelan  agent  in 
his  answer  states: 

It  should  be  noticed  that  the  witnesses  do  not  affirm  the  existence  upon  the  ranch 
"El  Molino"  of  all  of  the  animals  which  are  said  to  have  been  carried  off  by  the  troops 
and  that  no  mention  of  them  is  made  in  the  deeds  of  sale  by  De  Garmendia  to  the 
claimants. 

(a)  In  this  connection  we  beg  to  refer  the  Commission  to  the  discus- 
sion of  the  evidence  set  forth  in  the  brief  of  the  attorneys  of  the 
claimants  already  on  file  with  the  Commission.  It  will  be  seen  from 
a  perusal  of  the  passages  of  this  brief  in  relation  to  the  evidence  that 
the  contention  of  the  Government  of  Venezuela  is  wholly  unfounded. 

(b)  The  contention  of  Venezuela  that  the  acts  committed  on  the 
ranch  "El  Molino"  were  acts  necessarily  incident  to  operations  of 
war  can  not  be  sustained.  The  troops  supplied  themselves  with  cattle 
taken  from  claimant's  ranch,  and  camped  thereon,  doing  other  damage 
to  the  machinery  and  dwelling  house.  Acts  of  this  sort  do  not  come 
within  the  category  of  necessary  incidents  to  warfare.  The  Govern- 
ment of  Venezuela  took  the  claimants'  property  and  is  responsible  to 
pa}'^  a  reasonable  sum  there foi.  The  value  of  the  property  taken  and 
injured  has  already  been  testified  to  by  competent  witnesses.  (See 
brief  above  cited.)  The  troops  of  the  Government  of  Venezuela  took 
possession  of  the  ranch  of  the  claimants  and  are  responsible  to  the 
claimants  for  its  return  in  as  good  condition  as  they  received  it,  with 
a  proper  compensation  for  its  use,  or  to  pay  the  damages  caused  during 
their  occupation. 

We  submit  that  the  evidence  in  this  case  is  full,  and  amply  sustains 
the  allegations  set  forth  in  the  memorial,  and  that  an  award  should  be 
made  as  prayed. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


EEPORT  OF  ROBERT  C  MORRIS. 


195 


The  United   States  and   Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf  of  ~ 
Henry  R.  Kunhardt,  George  W.  Kulhke,  and 
Franz  Mueller,  partners  as   Kunhardt   &  Co., 
claimants, 

V. 

The  Republic  of  Venezuela. 


^No.  18. 


DECISION  AND  AWARD. 

Opinion  b}^  Bainbridge,  Commissioner. 

The  Coumiission  awards  to  the  claimants  the  sum  of  thirteen  thou- 
sand nine  hundred  and  fortj^-seven  dollars  ($13,917)  United  States 
gold. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf 
of  Henry  R.  Kunhardt,  George  W.  Kulhke, 
and  Franz  Mueller,  partners  as  Kunhardt  & 
Co.,  claimants. 


No.  18. 


The  Republic  of  Venezuela. 

Bainbridge,  Commissioner: 

Kunhardt  &  Co.,  claimants  herein,  are  a  copartnership  doing  busi- 
ness in  the  city  of  New  York  and  composed  of  Henry  R.  Kunhardt, 
George  W.  Kulhke,  and  Franz  Mueller.  Kunhardt  and  Kulhke  are 
native  citizens  of  the  United  States.  Mueller  was  born  in  Germany 
in  1859,  but  was  duly  naturalized  as  a  citizen  of  the  United  States  on 
June  12, 1896,  in  the  district  court  of  the  United  States  for  the  southern 
district  of  New  York. 

On  behalf  of  Messrs.  Kunhardt  &  Co.,  the  United  States  presents 
two  separate  and  distinct  claims. 

I. 

COMPANfA   An6nIMA    TRASPORTES    EN    ENCONTRADOS. 

The  memorial  states  that  on  the  24th  of  February,  1897,  a  contract 
was  entered  into  by  and  between  the  minister  of  public  works  of  Ven- 
ezuela, J.  M.  Ortega  Martinez,  and  Gen.  Joaquin  Valbucna  U.,  for 
the  construction  of  a  wooden  wharf  and  other  works  of  public  utility 
in  the  port  of  P^ncontrado.s,  on  the  Zulia  River,  in  the  State  of  Zulia, 
Venezuela.  By  the  said  contract  and  in  consideration  of  the  building 
and  maintaining  of  the  wharf  and  other  structures  by  Valbuena,  the 
Government  of  Vcnezucda  granted  to  Valbuena,  his  heirs  and  succes- 
sors, the  exclusive  right  for  fifteen  years  to  collect  tolls  from  the  ships 
or  boats  for  loading  and  unloading  at  said  port  a  duty  not  to  exceed 
75  centimos  for  every  hundred  kilograms  gross  weight  of  merchandise. 
The  grantee,  his  heirs  or  successors,  were  given  the  right  of  ownership 
over  the  wharf  and  its  belongings  during  said  term  of  tifteeu  years, 


1\){\  REPORT    OF    ROBERT    C.   MORRIS. 

upon  the  expiration  whereof  the  whurf  and  all  other  works  were  to 
become  the  property  of  the  nation. 

The  contract  by  its  tei'ins  could  be  transferred  to  another  person 
or  company,  national  or  foreign,  with  the  approval  of  the  Government 
of  Venezuela, 

This  contract  was  ratified  by  the  Congress  and  the  National  Execu- 
tive on  April  2,  1897,  and  ])ublished  in  the  ''Gaceta  Oficial." 

On  December  15, 1897,  Valbuena,  with  the  consent  of  the  President 
of  the  Republic,  assigned  all  his  rights  under  the  contract  to  Fre- 
derico  Evaristo  Schemel,  who,  on  December  16,  1897,  with  the  consent 
of  the  President  of  the  Republic,  assigned  all  his  rights  under  the  con- 
tract to  Bernardo  Tinedo  Velasco. 

Tinedo  completed  the  wharf  and  other  structures  in  accordance  with 
the  terms  of  the  contract.  On  Ma}"  10, 1898,  the  department  of  public 
works  appointed  Victor  Brige,  an  engineer,  to  examine  the  work,  and 
on  Jul}"  1-1,  1898,  Brige  reported  to  the  Government  that  the  wharf 
and  other  structures  conformed  to  all  the  requirements  of  the  contract, 
whereupon  said  work  was  accepted  on  behalf  of  the  Government. 

On  March  14,  1899,  with  the  approval  of  the  National  Executive  in 
the  council  of  ministers,  the  department  of  public  works  authorized 
Tinedo  to  assign  all  his  rights  under  said  contract  to  the  company 
known  as  "Compania  Anonima  Trasportes  en  Encontrados."  This 
company  was  formed  in  Maracaibo  on  April  10, 1899,  by  an  agreement 
entered  into  by  Bernardo  Tinedo  V.,  Rafael  Tinedo,  Carlos  Rodriguez, 
and  other  citizens  of  Maracaibo,  for  the  purpose  of  assuming  the  rights 
and  liabilities  of  the  Valbuena  contract.  By  its  articles  of  agreement 
it  was  provided  that  said  company  should  remain  in  existence  until  the 
expiration  of  the  fifteen  years,  during  which  the  right  to  collect  the 
tolls  was  granted  to  Valbuena  and  his  successors.  The  capital  of  the 
company  was  300,000  bolivars,  divided  into  four  hundred  shares  of 
750  bolivares  each.  Said  shares  were  issued  for  full  value  to  the 
members  of  said  company. 

On  April  18,  1899,  pursuant  to  the  authorization  given  him  by  the 
department  of  public  works,  Tinedo,  in  consideration  of  the  sum  of 
300.000  bolivars,  conveyed  to  the  "Compania  Anonima  Trasportes 
en  Encontrados"  the  wharf  and  other  structures,  together  with  all  the 
rights  and  privileges  under  the  contract  and  said  company  assumed  all 
the  duties  and  liabilities  imposed  by  said  contract.  This  conveyance 
was  registered  in  the  office  of  the  register  of  Maracaibo  on  April  22, 
1899. 

On  or  about  July  1,  1899,  Messrs.  Kunhardt  &  Co.  became  the 
owners  of  an  interest  in  the  "Compania  Anonima  Trasportes  en 
Encontrados"  amounting  to  243,750  bolivars,  represented  by  325 
certificates  of  stock,  each  certificate  representing  one  share  of  a  par 
value  of  750  bolivars. 

On  November  15,  1900,  the  National  Executive  of  the  Republic, 
through  the  department  of  public  works,  adopted  the  following 
resolution: 

//  is  resolred: 

As  the  agreement  entered  into  on  the  24th  of  February,  1897,  between  the  depart- 
ment and  the  citizen  Joaquin  Valbuena  Urquinaona,  for  the  construction  of  a  wharf 
in  the  port  of  Encontrados,  has  not  been  fulfilled  in  all  its  parts,  the  supreme  Chief 
of  the  Repu})lic  has  declared  said  contract  void. 

Let  it  be  known  and  published. 

For  the  National  Executive. 

J.  OtaSkz  M. 


REPORT  OF  ROBERT  C,  MORRIS.  197 

This  resolution  was  published  in  the  ""  Gaeeta  Oticial'-  November 
16,  1900. 

The  memorialists  allege  that  this  resolution,  whereby  the  Valbuena 
contract  and  concession  were  annulled,  was  without  legal  or  other 
cause  or  justitication,  and  v/rongfully  deprived  the  stockholders  of  the 
company,  and  in  particular  Kunhardt  &  Co.,  as  owners  of  over  three- 
fourths  of  said  stock,  of  the  property  to  which  they  were  legall}^ 
entitled  and  in  which  they  had  invested  funds  to  the  amoinit  of  213,- 
750  bolivars  upon  the  faith  of  the  promise  of  the  Government  of 
Venezuela  as  set  forth  in  said  contract  and  concession ;  that  since 
November  15,  1900,  the  Venezuelan  Government  has  prevented  said 
company  from  collecting  the  toll  to  which  it  was  and  is  justlv  entitled 
under  the  terms  of  the  said  contract  and  has  thereby  rendered  worth- 
less the  wharf  and  other  structures  erected  at  Encontrados,  and  the 
contract  and  concession  under  which  the  same  were  built,  all  in  con- 
travention of  the  terms  of  said  contract;  that  on  January  19,  1901, 
the  sharehojders  of  said  compan}',  including  Kunhardt  &  Co.,  pro- 
tested against  the  action  of  the  Executive  in  said  attempted  cancellation 
of  the  contract  and  in  the  subsequent  proceedings  in  pursuance  of  said 
cancellation,  but  that  the  Venezuelan  Government  has  continued  to 
prevent  the  collection  of  the  tolls  and  has  refused  to  allow  said  com- 
pany to  exercise  its  rights  under  the  contract. 

Kunhardt  &  Co.  claim  that  by  reason  of  said  wrongful  action  of  the 
Government  of  Venezuela,  that  they  have  been  damaged  in  the  sum  of 
213,750  bolivars,  equivalent  to  $16,875  in  United  States  gold,  being 
the  value  of  their  stock  in  the  "  Compaiiia  Anonima  Trasportes  en 
Encontrados"  prior  to  November  15,  1900,  and  they  claim  indemnity 
in  that  amount. 

The  learned  counsel  for  Venezuela  in  his  answer  declares  that  this 
claim  is  unfounded  in  every  respect;  that  the  corporation  '"Trasportes 
en  Encontrados"  was  organized  solely  b}'  citizens  of  Venezuela;  that 
claimants'  were  not  in  an}"  manner  interested  in  its  organization,  and 
that  if  they  became  the  ow^ners  of  various  shares  of  stock  issued  by 
said  company,  it  was  a  voluntary  act  on  their  part;  that  if  any  claim 
could  arise  against  the  Government  of  Venezuela  on  account  of  the 
annulment  of  the  contract  of  February  21,  1897,  only  the  managers  of 
the  compan}',  or  the  receiver  in  case  of  dissolution,  could  institute  the 
suit;  that  the  claimants,  taking  advantage  of  their  status  as  foreigners 
b}' making  this  claim,  are  using  an  extraordinary  remedy  not  available 
to  the  other  shareholders  of  the  company. 

Article  163  of  the  Codigo  de  Comercio  of  Venezuela  recognizes 
three  kinds  of  mercantile  companies: 

(1)  La  compafiie  en  nond)re  colectivo,  in  which  all  the  members 
administer  the  business  themselves  or  b}^  means  of  an  agent  chosen  by 
common  accord.  The  lia))ility  of  each  member  is  unlimited.  It  cor- 
responds to  a  general  partnership. 

(2)  La  compania  en  comandita,  in  which  one  or  more  of  the  mem- 
bers are  bound  only  to  the  amount  of  their  investment.  There  are 
two  kinds  of  companies  en  comandita;  {'/)  simple  and  {h)  divided  into 
shares.  It  is  similar  to  what  is  known  in  England  and  the  United 
States  as  a  limited  partnership. 

(3)  La  compania  anonima,  in  which  the  capital  is  managed  by  share- 
holders, who  are  responsible  only  to  the  value  of  their  shares.  It  is 
the  legal  entity  known  to  the  common  law  as  a  private  corporation. 


198  REPORT  OF  ROBERT  C.  MORRIS. 

Any  number  of  persons  not  less  tlmn  seven  may  by  agreement 
associate  themselves  into  a  "Compania  Anonima."  No  previous 
authorization  is  necessary.  It  is  a  corporation  created  under  general 
charter.  The  law  i-equires  that  the  articles  of  agreement  (contrato 
de  sociedad),  in  writing,  whatever  the  muiiber  of  the  shareholders, 
must  be  made  in  duplicate,  one  copy  of  which  is  to  be  filed  in  the 
office  of  the  register  and  the  other  in  the  records  of  the  company. 
(Art.  195.) 

The  powers,  capacities,  and  incapacities  of  a  corporation  under  the 
civil  law  are  similar  to  those  under  the  P^nglish  and  American  corpora- 
tion law. 

The  "Compania  Anonima  Trasportes  en  Encontrados"  was  organ- 
ized April  10,  1899,  by  nine  citizens  of  Maracaibo,  and  its  articles  of 
agreement  filed  in  the  registry  as  provided  by  law  on  April  13,  1899. 

The  articles  of  agreement  declare  the  objects  and  purpose  of  the 
corporation  to  be  the  acquisition  of  the  rights  and  privileges  granted 
b}"  and  the  assumption  of  the  obligations  of  the  contract  executed 
between  the  National  Government  and  Gen.  Joaquin  Valbuena  on  Fel)- 
ruarv  24,  1897.  The  capital  of  tlie  companv  is  fixed  by  said  articles 
at  300,000  bolivars.  On  April  18,  1899,  Bernardo  Tinedo  Velasco,  the 
then  owner  of  the  concession,  pursuant  to  the  authorization  of  the 
Government,  duly  transferred  to  the  compan}^  all  the  rights  and  privi- 
leges which  had  been  acquired  b}^  him  as  concessionaire  under  said 
contract.  The  consideration  of  the  transfer  is  declared  to  be  300,000 
bolivars. 

H.  R.  Kunhardt  states  in  an  affidavit  dated  May  20,  1903,  that  as  a 
partner  of  the  firm  of  Kunhardt  &  Co.  he  purchased,  on  or  about  July  1, 
1899,  325  certificates  of  the  stock  of  said  compania  of  the  par  A^alue  of 
750  bolivars  each,  amounting  to  21:3,750  bolivars,  or  $46,875  American 
money;  that  the  reasonable  value  of  said  325  certificates  on  November 
15,  1900,  was  $46,875,  and  that  during  the  year,  from  September  12, 
1899,  to  September  20, 1900,  the  company  declared  and  paid  dividends 
on  said  stock  amounting  to  over  10  per  cent  on  the  par  value  of  each 
share  of  stock. 

The  capital  of  the  "Compania  Anonima  Trasportes  en  Encontrados" 
was  represented  by  the  alleged  value  of  the  contract  and  concession  of 
February  24, 1897.  It  is  claimed  that  the  Executive  action  of  Novem- 
ber 15,  1900,  annulling  the  contract  renders  worthless  the  wharf  and 
other  structures  erected  at  Encontrados  and  the  contract  and  conces- 
sion under  which  the  same  were  built.  In  other  words,  it  took  away 
the  company's  capital.  Paragraph  2  of  article  204  of  the  Codigo  de 
Comercio,  provides  that  when  the  caj^ital  of  a  company  has  been 
diminished  two-thirds,  the  company  is  necessarily  put  m  liquidation, 
if  the  shareholders  do  not  prefer  to  refund  the  same  or  limit  the  capital 
to  the  existing  balance,  provided  the  latter  is  sufficient  to  obtain  the 
objects  of  the  company.  Article  42  of  the  reglamento  of  the  company 
provided  that  when  any  of  the  cases  expressed  in  paragraph  2  of  arti- 
cle 204  of  the  Codigo  de  Comercio  should  exist  the  company  could  be 
dissolved. 

When  the  capital  of  the  corporation  was  practically  destroyed  by 
the  taking  away  of  that  which  represented  it,  the  company  was  dis- 
solved b}'  operation  of  law  and  the  by-laws  above  cited. 

While  the  property  of  a  corporation  in  esse  belongs  not  to  the 
stockholders  individual!}^  or  collectively,  but  to  the  corporation  itself, 


REPORT  OF  ROBERT  C.  MORRIS.  199 

it  is  a  principle  of  law  universally  recognized  that,  upon  dissolution, 
the  interests  of  the  several  stockholders  become  equitable  rights  to 
proportionate  shares  of  the  corporate  property  after  the  payment  of 
the  debts.  The  rights  of  the  creditors  and  shareholders  to  the  real 
and  personal  property  of  the  corporation,  as  well  as  to  its  rights  of 
contract  and  choses  in  action,  are  not  destroj^ed  by  dissolution  or 
liquidation.  But  in  such  case  the  creditors  of  the  corporation  have  a 
right  of  priority  of  pajaiient  in  preference  to  the  stockholders. 

The  principal  asset  of  the*  "Compania  Anonima  Trasportes  en 
Encontrados"  was  the  Valbuena  concession.  Under  it  the  Govern- 
ment of  Venezuela,  for  a  consideration,  agreed  to  give  the  grantee, 
his  heirs,  or  successors,  the  rights  and  privileges  therein  designated 
for  a  period  of  fifteen  years.  It  is  fundamental  that  if  one  party  to  a 
contract  wrongfull}^  violates  it  he  becomes  liable  to  the  other  for  such 
damages  as  the  latter  may  sustain  b}^  reason  of  the  breach,  and  this  is 
true  "whether  such  party  be  a  private  individual,  a  monarch,  or  a 
government  of  any  kind." 

Article  691  of  the  civil  code  of  Venezuela  recognizes  and  declares 
that  a  property  right  may  rest  in  contract.  If  the  rights  granted 
under  the  contract  of  February  21,  1897,  were  wrongfully  taken  away 
by  the  Government  of  Venezuela,  contpensation  is  justly  due  from 
that  Government,  first,  to  the  Compania  Anonima  Trasportes  en 
Encontrados,  or,  second,  upon  the  dissolution  of  said  company,  to  its 
creditors  and  shareholders. 

Messrs.  Kunhardt  &  Co.,  as  citizens  of  the  United  States  and  the 
equitable  owners  of  their  proportionate  share  in  the  property  of  the 
dissolved  corporation,  have  a  standing  before  this  Commission  to  make 
claim  for  indemnity  for  such  losses  as  they  may  prove  they  have  sus- 
tained by  reason  of  the  wrongful  annulment  of  the  concession. 

The  claim  of  Kunhardt  &  Co.  is  based  upon  the  alleged  value  of  the 
concession  when  canceled  as  being  300,000  bolivars,  and  it  is  urged  on 
their  behalf  that  they  have  been  damaged  to  the  reasonable  value  of 
their  interest  in  the  company  as  measured  by  their  ownership  of  325 
shares  of  the  capital  stock  of  a  par  value  of  750  bolivars  each,  or  the 
total  value  of  243,750  bolivars,  equivalent  to  $46,875  in  United  States 
gold. 

But  the  real  interest  of  Kunhardt  &  Co.  is  an  equitable  right  to  their 
proportionate  share  of  the  corporate  property  after  the  creditors  of 
the  corporation  have  been  paid.  An  important  and,  indeed,  an  essen- 
tial element  of  proof  to  determine  the  actual  measure  of  the  claimants' 
loss  is  entirely  wanting  here.  No  evidence  of  the  amount  of  the  cor- 
porate debts  is  presented,  although  the  existence  of  corporate  indebt- 
edness is  apparent.     The  protest  of  January  19,  1901,*  states  that — 

The  prejudices  are  very  grave  which  the  company,  its  .stockholders  and  inamj  others 
viho  have  interest  in  it,  suffer  from  the  Executive  resolution  which  declared  the  contract 
base  of  this  company  "canceled."  And  said  protest  is  made  on  behalf  of  the  com- 
pany, its  stockholders,  and  others  connected  tnith  it. 

Who  but  creditors  of  the  corporation  can  be  parties  in  interest  to 
this  contract  other  than  the  company  and  its  stockholders'^ 

The  value  of  the  corporate  sharesvand  the  extent  of  a  shareholder's 
interest  in  the  corporate  property  are  absolutely  dependent  upon  the 
relation  which  the  assets  of  the  corporation  l)ear  to  its  liabilities. 

The  absence  of  such  a  showing  in  this  case  renders  impossible  the 
determination  of  Kunhardt  &  Co.'s  interest  in  the  concession  or  the 


200  REPORT  OK  ROBERT  0.  MORRIS. 

aiiioiuil  of  loss  tlu'v  h;i\e  .sustuincd  by  its  uiiimlnu'iit.  The  claim  must, 
tlioroforo,  bo  heiv  clisullowcHl,  but  without  pi'ojudioe  to  tlio  corporti- 
tion,  its  fivclitors  and  stockhoklors,  or  to  the  interests  of  these  claim- 
ants therein. 

EL   MOLINO. 

The  memorial  states  that: 

{(i)  Tlie  tirni  of  Kunhardt  &  Co.  are  and  since  September  12,  1897, 
have  been  the  owners  of  an  estate  known  as  ''  El  Molino,"  situated  in 
the  district  of  Barquisinieto,  State  of  Lara,  Venezuela.  Said  firm 
invested  in  the  purchase  and  improvement  of  this  property  the  sum  of 
$35,000.  The  estate  was  used  for  the  raising*  of  sugar  cane  and  the 
manufacture  of  sugar,  the  raising  of  corn  and  fodder,  and  for  pasturing 
milch  cattle  and  oxen.  Since  June  5,  1899,  the  estate  has  been  in 
charge  of  J.  Adolphus  Ermin,  as  administrator  and  agent  of  claimants, 
and  from  said  date  to  December  22,  1899,  the  firm  received  from  the 
estate  a  monthly  income  exceeding  400  bolivars. 

On  the  night  of  Decem))er  23,  18!>9,  certain  troops  of  the  army  of 
General  Castro,  under  the  immediate  command  of  General  Lara, 
entered  upon  and  took  forcible  possession  of  said  estate  and  encamped 
thereon  for  some  time.  During  this  period  the  troops  seized  for 
rations  the  cattle  upon  the  estate  and  foraged  their  horses  upon  the 
growing  crops,  destroying  all  the  corn  and  sugar  cane  growing  upon 
the  estate;  took  for  their  own  use  the  horses,  donkeys,  and  mules, 
which  were  on  the  estate,  and  upon  the  departure  of  the  troops  they 
had  killed  or  taken  awa}'  all  the  live  stock  and  destroyed  all  the  grow- 
ing crops,  had  injured  and  destrox^ed  the  wire  fencing  and  greatly 
damaged  the  sugar  house  and  sugar  machinery. 

As  a  direct  result  of  the  occupation  of  the  estate  by  the  troops  of 
General  Lara,  the  firm  of  Kunhardt  &  Co.  sustained  damages  to  the 
extent  of  81,900  bolivars,  equivalent  to  the  sum  of  $15,750  in  United 
States  gold.  An  appraisal  of  the  property  lost  and  an  assessment  of 
the  damages  done,  were  made  by  competent  appraisers  familiar  with 
the  property  and  its  value.  The  report  of  said  appraisers  shows  the 
loss  sustained  by  claimants  to  be  as  follows: 

Bolivars. 
85  selected  milcli  cattle,  several  of  them  American,  an  average  of  240  bolivars 

each 20, 400 

3  teams  of  donkeys,  with  their  harness,  at  1,200  bolivars  per  team 3,  600 

9  mules,  at  500  bolivars  each 4,  500 

18  horses,  at  500  bolivars  each 9,  000 

Damage  to  the  residence 8, 000 

3  carts,  with  their  harness,  at  400  bolivars  each 1 ,  200 

Damage  to  the  wire  fence 2,  000 

300  tares  of  corn  fodtier,  at  24  bolivars  each 7,  200 

250  tares  of  sugar  cane,  at  40  bolivars  each 10, 000 

Injury  to  the  engine  room  and  loss  of  the  zinc  of  the  engine  house 16,  000 

81, 900 
Or  in  United  States  money $15,  750 

Said  appraisement  was  verified  by  the  appraisers  before  Sefior  R.  M. 
Delgado,  judge  of  the  municipal  court  of  the  cit}^  of  Conception,  on 
April  16,  1901. 

(b)  The  claimants  allege  that  since  the  occupation  of  "El  Molino" 
by  the  troops  in  December,  1899,  as  above  described,  the  district  in 
which  said  estate  is  situated  has  been  in  a  condition  of  civil  disturb- 


■REPORT    OF   ROBERT    C.   MORRIS.  201 

ance,  which  has  prevented  them  from  restocking,  replanting,  or  in 
any  wa}'  making  use  of  said  estate,  which,  it  is  claimed,  is  highly 
adapted  to  agricultural  use,  and  except  for  the  civil  disorder  \\'iiich 
has  prevailed  would  he  exceedingly  productive;  that  previous  to  the 
occupation  of  December,  1899,  the  estate  yielded  a  net  annual  profit  of 
$924;  that  the  Government  of  Venezuela  has  failed  to  suppress  said 
condition  of  civil  disturbance  by  reason  whereof  claimants  have  lost 
the  use  and  occupation  of  said  estate  to  their  damage  in  the  sum  of 
13,054.33. 

(6')  In  a  supplemental  memorial  dated  May  20,  1903,  claimants  allege 
that  they  have  sustained  further  losses  and  damages  by  reason  of  addi- 
tional depredations  committed  by  Government  troops  upon  said  estate 
"El  Molino;"  that  in  order  to  maintain  said  estate  and  reduce  as 
much  as  possible  the  damages  suffered  in  respect  thereto,  the  agent  of 
claimants  kept  on  the  estate  a  small  number  of  milch  cattle  and  endeav- 
ored to  raise  hay  and  corn;  that  during  the  first  part  of  the  year  1902 
the  Government  troops  destroyed  all  the  crops  on  said  estate  and 
seized  5  milch  cattle;  and  that  on  the  2d  day  of  April,  1903,  said  troops 
seized  13  milch  cattle  from  said  estate  to  the  additional  injury  of 
claimants  in  the  sum  of  $1, -407.61. 

{d)  In  a  supplemental  memorial  dated  June  22,  1903,  claimants  filed 
a  "  justicativo"  in  proof  of  loss  and  damages  sustained  by  them  in 
respect  to  said  estate  in  addition  to  that  shown  in  their  previous  memo- 
rials, in  the  sum  of  12,(335.77,  gold. 

The  entire  amount  claimed  for  injuries  sustained  in  connection  with 
the  hacienda  "El  Molino"  is  the  sum  of  $22,847.71,  United  States 
gold. 

The  responsibilit}^  of  a  government  for  the  appropriation  of  neutral 
property  in  time  of  war  has  been  clearly  stated  in  Shriglay's  case 
decided  by  the  United  States  and  Chilean  Claims  Commission  of  1892, 
as  follows: 

{a)  Neutral  property  taken  for  the  use  or  service  of  armies  by  offi- 
cers or  functionaries  thereunto  authorized  gives  a  right  to  the  owner 
of  the  property  to  demand  compensation  from  the  government  exer- 
cising such  authority. 

(b)  Neutral  property  taken  or  destro3^ed  by  soldiers  of  a  belligerent 
with  authorization,  or  in  the  presence  of  their  officers  or  commanders, 
gives  a  right  to  compensation  whenever  the  fact  can  be  proven  that 
said  officers  or  commanders  had  the  means  of  preventing  the  outrage 
and  did  not  make  the  necessary  efforts  to  prevent  it. 

The  evidence  submitted  in  support  of  this  claim  satisfactorily  shows 
that  the  Government  troops  under  the  immediate  command  of  General 
Lara  entered  upon  and  confiscated  property  of  the  estate  "  El  Molino" 
in  December,  1899,  and  at  various  times  thereafter.  A  reasonable 
compensation  is  therefore  due  to  claimants  from  the  Government  of 
Venezuela  for  the  losses  thus  sustained.  But  that  portion  of  the  claim 
based  upon  the  loss  of  the  annual  profits  of  the  estate  by  reason  of  the 
civil  disorder  which  prevailed  in  the  distiict  does  not  appear  to  be 
well  founded.  The  situation  of  claimants'  i)roperty  in  that  regai'd  did 
not  differ  from  that  of  other  property  within  the  same  district,  and  no 
government  is  immune  from  the  occurrence  of  civil  commotions. 
There  is  also  in  the  last  two  memorials  an  obvious  duplication  of  the 
claim  for   the  13  milch  cattle  taken  early  in  April,  1902.     Several 


I2(>'2  REPORT  0¥    ROBERT  C.  MORRIS. 

items  of  the  cliiim  appear  ti)  be  excessive,  and  the  evidence  of  value  is 
not  wholly  satisfactory. 

The  Commissioners  liave  at>-reed  upon  an  award  in  favor  of  Kunhardt 
&  Co.  on  this  ])ranch  of  tiieir  claim  in  tiie  sum  of  $13,947,  gold  coin 
of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting-  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  Henry  H.  Kunhardt,  George  G.  Kulhke, 
and  Franz  Mueller,  partners  as  Kunhardt  & 
Co.,  claimants, 

V. 

The  Republic  of  Venezuela. 


No.  18. 


Doctor  Paul,  Com,7nissioner. 

The  United  States  of  America  presents  in  this  case  two  individual 
claims  on  behalf  of  Kunhardt  &  Co.,  one  for  the  sum  of  $46,875  for 
damages  arising  from  the  cancellation  ordered  by  the  Government  of 
Venezuela  of  a  certain  contract,  and  the  other  for  damages  to  the 
estate  "El  Molino"  for  the  amount  of  $22,847.71. 

The  first  claim  is  based  upon  the  fact  that  Kunhardt  &  Co.  being 
owners  of  a  portion  of  the  400  shares  stock  capital  of  a  corporation 
named  "  Trasportes  en  Encontrados,"  they  consider  themselves  entitled 
to  obtain  directly  from  the  Government  of  Venezuela  the  payment 
of  damages  which  they  allege  the}^  have  suft'ered  by  the  decree  issued 
by  said  Government  canceling  the  Encontrados  contract. 

The  honorable  agent  for  Venezuela,  in  his  answer  to  this  claim,  sus- 
tains that  the  claimants  have  no  right,  as  stockholders  of  an  anon}'- 
mous  corporation,  to  set  forth  an  action  against  the  Government  of 
Venezuela,  to  obtain  an  award  for  damages  caused  by  the  annulment 
of  a  concession  granted  by  said  Government  to  a  citizen  of  Venezuela, 
and  transferred  afterwards  to  an  anonymous  corporation,  domiciled  in 
Venezuela,  and  whose  rights,  properties,  and  titles  are  legally  repre- 
sented by  its  own  manager  during  the  existence  of  the  corporation,  or 
by  its  liquidators,  if  the  same  has  been  put  in  liquidation. 

The  contract  celebrated  in  April,  1897,  between  the  minister  of  pub- 
lic works  and  Joaquin  Valbuena  Urquinaona,  a  citizen  of  Venezuela, 
had  for  its  object  the  construction  of  a  wooden  wharf  and  other  works 
in  the  port  of  Encontrados,  on  the  river  Zulia,  in  the  State  of  Zulia. 
It  was  transferred  two  years  after  to  an  anonymous  corporation  called 
"Trasportes  en  Encontrados"  formed  by  Venezuelan  stockholders, 
with  Venezuelan  capital,  and  the  price  of  acquisition  of  the  rights  of  the 
grant  was  paid  by  the  corporation  to  the  owner  of  the  concession  from 
its  own  funds. 

The  corporation  appointed  in  its  first  general  assembly  of  share- 
holders a  board  of  directors  and  a  manager,  all  Venezuelans,  and  choose 
as  its  domicile  the  city  of  Maracaibo,  capital  of  the  State  of  Zulia, 
being,  consequently,  a  domestic  corporation  of  Venezuela. 

By  the  deed  of  the  aforesaid  transfer,  which  was  recorded  in  the 
subsidiary  office  of  the  register  of  Maracaibo,  on  the  22d  of  April,  1899, 
the  corporation  assumed  all  rights,  exemptions,  and  privileges  arising 


REPORT  OF  ROBERT  C.  MORRIS,  203 

from  the  grant,  and  bound  itself  to  tlic  terms  of  the  article  16  of  the 
contract,  which  reads  as  follows: 

That  any  doubt  or  dispute  arising  from  the  intelHgence  of  this  contract  should  be 
decided  by  the  courts  of  the  Republic,  according  to  its  laws,  and  they  could  not  in 
any  case  be  a  motive  for  an  international  claim. 

Can  it  be  admitted  as  belonging  to  Kunhardt  &  Co.,  shareholders  of 
the  domestic  corporation  "  Trasportes  en  Encontrados,"  the  right  to 
claim  damages  arising  from  the  breach  of  a  contract  that  does  not 
belong  to  them,  but  which  is  th6  exclusive  propert}^  of  the  corporation 
"Trasportes  en  Encontrados?" 

Being  the  fundamental  fact  for  this  claim  the  wrongful  annulment 
of  a  grant,  the  claimants  necessarily  must  be  the  owners  of  such  grant, 
and  said  owner,  or  his  legal  representatives,  is  the  only  person  entitled 
to  claim  restitution,  indemnity,  or  compensation  for  the  value  of  the 
property  which  has  been  taken  from  him.  There  is  only  one  grant. 
The  agreement  between  the  Government  of  Venezuela  and  the  grantee 
originates  juridical  ties  only  between  the  two  contracting  parties. 
That  grantee  was  originalh'  a  V^enezuelan  named  Joaquin  Valbuena 
Urquinaona;  subsequently  all  the  rights  and  privileges  of  said  con- 
tract were  transferred  and  assigned  Frederico  Evaristo  Schemel,  and 
on  or  about  December  16,  1897,  said  Schemel  transferred  and  assigned 
all  his  rights  and  privileges  under  said  contract  and  concession  to 
Bernardo  Tinedo  Velasco.  This  Tinedo  Velasco  assigned  to  the  cor- 
poration '"Trasportes  en  Encontrados"  all  his  rights  and  liabilities. 
By  this  last  transfer  the  moral  person,  also  a  Venezuelan,  named 
"Compania  Anonima  Trasportes  en  Encontrados,"  became  the  only 
owner  of  said  rights,  and  this  fact  was  expressly  notified  to  the  Gov- 
ernment of  Venezuela,  who  gave  its  authorization  and  conformity  to 
the  transfer  bv  a  decision  of  the  Department  of  Public  Works,  of 
March  U,  1899. 

The  juridical  ties  created  b}^  the  original  contract  between  the  Gov- 
ernment of  Venezuela  and  Joaquin  Vall)uena  Urquinaona  were,  by 
the  last  transfer,  finally  establisjhed  between  the  said  Government  and 
the  Compania  Anonima  "Trasportes  en  Encontrados."  No  juridical 
ties  of  any  kind  exist  between  Messrs.  Kunhardt  &  Company  and  the 
Venezuelan  Government  arising  from  the  aforesaid  contract. 

The  interest  acquired  by  Kunhardt  &  Co.  by  investing  their 
monej^  in  shares  of  the  corporation  is  a  private  transaction  between 
them  and  the  corporation,  and  does  not  create  any  juridical  ties 
between  the  Government  of  Venezuela  and  them  as  shareholders  dur- 
ing the  existence  of  the  corporation. 

The  shareholders  of  an  anonymous  corporation  are  not  co-owners  of 
the  property  of  said  corporation  during  its  existence;  they  only  have 
in  their  possession  a  certificate  which  entitl(;s  them  to  participate  in 
the  profits  and  to  become  owners  of  proportional  part  of  the  property 
and  values  of  the  corporation,  when  this  one  makes  an  adjudication  as 
a  consequence  of  its  final  dissolution  or  liquidation. 

The  Venezuelan  Commercial  Code  in  article  133  expressly  deter- 
mines that  an  anonymous  corporation  constitutes  a  juridical  person 
distinctly  separated  from  its  shareholders.  Article  204  of  the  same 
code  provides  that  when  the  managers  find  that  the  social  capital  has 
reduced  one-third,  they  should  call  a  general  meeting  of  shareholders 
to  decide  whether  the  corporation  ought  to  liquidate,  and  in  its  section 


Ul)  t  llKPOirr    OK    ROBERT    0.    MORRIS. 

^2  of  the  same  article  it  is  provided  that  the  reduction  of  a  capital  is 
of  two-thirds  (he  cor])oratioii  shall  \)o  put  necessaril}'  in  li(]uidation, 
if  the  shareholders  do  not  prefer  to  renew  the  capital  or  to  limit  the 
social  capital  to  the  existinj^  funds,  provided  it  would  be  sufficient  to 
fill  the  object  of  the  corporation. 

The  documents  in  evidence  do  not  show  any  proof  that  the  corpora- 
tion "Trasportes  en  P^ncontrados"  has  been  put  in  liquidation,  neither 
has  it  dissolved  in  accordance  with  the  conmun'cial  hiwand  the  statutes 
of  the  same  corporation.  The  representation  of  all  its  rights,  and  its 
juridical  pei'son  remain  the  same  as  they  were  at  the  last  general  special 
meeting  held  on  January  1<,»,  1001,  being  that  representation  exercised 
by  its  board  of  directors.  At  the  same  meeting  the  shareholders  lim- 
ited their  action  to  intrust  the  managers  of  the  company  with  the 
formulation  of  a  protest  against  the  annulment  of  the  contract,  to  leave 
in  safety  the  integrity  of  its  rights  and  for  all  the  prejudices  and  darn- 
age  caused  to  the  company^  its  stochholders^  and  others  connected  with 
it,  in  order  to  make  them  of  value  in  the  manner  and  at  the  time  they 
helieve  opportune. 

Nothing  appears  to  have  been  done  by  the  managers  or  -board  of 
directors  of  the  corporation  "Trasportes  en  Encontrados"  to  liquidate 
the  same,  nor  to  adjudicate  any  part  of  the  corporation's  propert}^  to 
the  shareholders. 

The  integrity  of  the  rights  of  the  corporation  remain  in  the  corpora- 
tion itself,  and  its  exercise  is  specially  and  legally  intrusted,  bj'  the 
common  law,  by  the  provisions  of  the  Commercial  Code,  and  by  the 
social  contract,  to  the  manager  and  the  board  of  directors.  Therefore 
the  said  rights  cannot  be  exercised  by  any  other  person  than  the 
directors  of  the  corporation. 

Messrs.  Kunhardt  &  Co.  have  no  legal  capacity  to  stand  l)efore  this 
Commission  as  claimants  for  damages  originated  by  a  breach  of  a  con- 
tract, which  rights  and  obligations  are  only  mutually  established 
between  the  Government  of  Venezuela  and  the  corporation  Compania 
anonima  "Trasportes  en  Encontrados." 

The  case  of  the  claim  of  the  Salvador  Commercial  Company  and 
other  citizens  of  the  United  States,  stockholders  in  the  corporation 
which  was  created  under  the  laws  of  Salvador,  under  the  name  of  the 
"El  Triumfo  Company,"  Limited,  and  the  other  one  of  the  Delagoa 
Bay  Railwa}^  Company,  to  which  the  attention  of  the  Commission  has 
been  called  by  the  honorable  agent  of  the  United  States,  have  been 
carefully  examined,  and  they  do  not  present  any  likeness  to  the 
present  claim. 

By  the  aforesaid  considerations,  I  consider  that  this  first  claim  for 
damages,  amounting  to  116,875,  must  be  disallowed,  without  prejudice 
to  the  rights  of  the  corporation  Compania  Anonima  "Trasportes  en 
Encontrados,"  its  stockholders,  and  others  connected  with  it. 

In  reference  to  the  second  claim,  amounting  to  $22,817.71,  for 
damages  to  the  estate  "El  Molino,"  owned  by  Messrs.  Kunhardt  & 
Co. ,  I  entirely  agree  with  the  honorable  Commissioner  for  the  United 
States,  in  the  appreciation  of  the  evidence  and  the  responsibility  of 
the  Government  of  Venezuela. 

An  award  is  therefore  agreed  to  in  favor  of  Kunhardt  &  Co.  for  the 
sum  of  $13,947  United  States  gold. 


REPOKT  OF  ROBERT  C.  MORRIS,  205 

The   United   States   and  Venezuelan  Claims  Commi.ssion,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of 
Kunhardt  &  Co.,  claimants,  against  the  Republic  of  Venezuela,  No. 
18,  the  sum  of  thirteen  thousand  nine  hundred  and  forty -seven  dollars 
($13,947)  in  United  States  gold  jcoin  is  hereby  awarded  in  favor  of  said 
claimants,  which  sum  shall  be  paid  by  the  Government  of  Venezuela 
to  the  Government  of  the  United  States  of  America,  in  accordance 
with  the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Commissionet'  on  the  part  of  the  United  States  ({/America. 

J.  DE  J.  Paul, 
Commissi o?ier  on  the  part  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  ihe  jmrt  of  Yeneziiela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  August  18,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The   United   States  of  America  on   behalf] 
of  the  Orinoco  Steamship  Company,  claimant,     \^     -.  q 

V. 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHAIiF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  the  Orinoco 
Steamship  Company  to  recover  on  various  claims  the  total  sum  of 
$1,401,539.84:,  with  interest  to  be  calculated  upon  certain  portions 
thereof. 

I. 

statement  of  facts. 

The  claimant  is  a  citizen  of  the  United  States,  being  a  corporation 
organized  under  the  laws  of  the  State  of  New  Jersey. 

On  the  1st  of  April,  1902,  the  claimant,  for  and  in  consideration  of 
its  entire  capital  stock  of  $1,000,000  and  the  discharge  of  the  outstand- 
ing debts  and  obligations  of  the  Orinoco  Shipping  and  Trading  Com- 
pany, purchased  and  took  over  all  the  pro[)('rty,  assets,  and  claims  of 
that  company,  including  the  contract  concession  from  the  (irovcrn- 
ment  of  Venezuela  for  the  exclusive  navigation  by  steamships  engaged 


200  REPORT  OF  ROBERT  C.  MORRIS. 

in  foreign  trade  of  the  Macureo  and  Federnales  channels  of  the  Ori- 
noco River,  together  svith  all  claims  of  said  Orinoco  Shipping  and 
Trading  Conipan}-  against  the  Government  of  Venezuela  for  services 
rendered  and  other  causes. 

The  claims  Avhich  are  presented  are  three  in  number: 

First,  a  claim  for  a  balance  of  100,000  bolivars  overdue  under  an 
agreement  of  settlement  made  between  the  Orinoco  Shipping  and 
Trading  Company  and  the  Government  of  Venezuela  on  the  lOth  day 
of  May,  A.  D.  1900,  and  evidenced  by  instruments  in  writing  of  that 
date,  copv  of  which  written  instruments  is  set  forth  in  the  memorial 
(pp.  19-22). 

Second,  a  claim  for  damages  arising  from  the  annul Iment  by  Execu- 
tive decree  of  October  5,  1900,  subsequently  ratified  by  the  legislative 
power,  of  the  exclusive  contract  concession  above  referred  to. 

Third,  a  claim  made  up  of  charges  for  services  rendered  in  carrying 
passengers  and  freights,  and  other  amounts  due  under  the  terms  of  the 
contract  concession,  and  for  imposts  illegally  exacted,  for  loss  of  earn- 
ings from  June  to  November,  1902,  by  reason  of  illegal  and  improper 
discriminations  against  the  claimant  company's  vessels  by  Government 
agents  and  representatives,  and  for  use  and  detention  of  and  damages 
to  the  claimant's  vessels.  '» 

The  facts  out  of  which  these  claims  arise  are,  brietl}",  that  in  1893 
the  Government  of  Venezuela  had  by  an  Executive  decree  reserved 
the  Macareo  and  Pedernales  channels  of  the  Orinoco  River  for  coastal 
service  only,  and  thereafter,  on  the  8th  of  June,  1894,  by  an  act  of  the 
Congress  of  Venezuela,  a  contract  was  made,  which  by  various  duly 
recognized  and  lawful  transfers  became  the  property  of  the  claimant, 
same  being  set  out  in  full  in  the  memorial  (pp.  8-12),  whereby  the 
claimant  and  its  predecessor  became  possessed  of  the  exclusive  right 
of  navigation  of  those  channels  upon  and  in  consideration  of  certain 
terms  and  conditions  as  to  the  carrying  of  freight  and  passengers  and 
the  rendition  of  other  services  for  the  Government  as  therein  specified. 

This  concession  contract  was  to  be  good  for  the  full  period  of  fifteen 
years,  to  expire  on  the  8th  of  June,  1909. 

Various  services  to  the  Venezuelan  Government  having  been  ren- 
dered by  the  Orinoco  Shipping  and  Trading  Company  and  its  assignor 
under  said  contract,  claims  against  that  Government  arose  in  favor  of 
said  Orinoco  Shipping  and  Trading  Company,  and  such  claims  and 
the  vouchers  in  support  thereof  presented  from  time  to  time  to  the 
proper  ofiicials  amounted,  on  the  10th  day  of  Ma}^,  1900,  to  the  total 
sum  of  $532,996.85.  On  said  May  10,  1900,  a  full  settlement  of  all  of 
such  claims  was  made  between  the  said  Orinoco  Shipping  and  Trading 
Company  and  the  Government  of  Venezuela,  whereby,  in  consider- 
ation of  the  extinguishment  and  cancellation  of  said  claims,  there  was 
paid  to  said  compan}^  the  sum  of  100,000  bolivars  in  cash,  vrith  an 
agreement  to  pay  a  further  like  sum  thereafter,  and  a  further  agree- 
ment to  extend  the  effective  period  of  said  contract  concession  for  six 
years,  to  expire  on  the  8th  day  of  June,  1915. 

Notwithstanding  the  exclusive  rights  so  granted  to  and  being  the 
property  of  said  Orinoco  Shipping  and  Trading  Company  under  said 
concession,  and  in  consideration  of  the  extension  of  which  for  the 
further  period  of  six  j^ears  as  aforesaid,  claims  of  such  magnitude, 
due  as  above,  had  been  surrendered,  the  Government  of  Venezuela, 
on  the  5th  day  of  October,  1900,  promulgated  and  published  a  decree 


REPORT  OF  ROBKKT  C,  MORRIS.  207 

opening  said  channels  of  the  Orinoco  Riv^er  to  free  navigation  by  all 
persons  whatsoever,  thereby  violating  and  annulling  the  solemn  com- 
pact between  the  Government  and  the  compan}",  on  the  faith  of  which 
more  than  $940,000  had  been  invested  in  preparing  for  and  building 
up  the  business. 

Since  said  October  5,  1900,  the  Orinoco  Shipping  and  Trading  Com- 
pany up  to  April  1,  1902,  and  since  then  the  claimant  herein,  have  con- 
tinued to  operate  the  vessels  and  to  perform  the  terms  of  the  contract 
concession  upon  their  part  to  be  kept,  by  reason  thereof  there  have 
accrued  due  in  favor  of  said  companies  various  claims  for  passages, 
freights,  and  use  of  steamers  under  the  contract,  and  other  claims 
specified  in  the  memorial,  but  not  covered  by  the  settlement  of  May  10, 
1900,  all  of  which  are  owned  by  the  claimant  here. 

The  total  of  these  claims,  including  the  claim  for  damages,  but 
exclusive  of  interest  properly  allowable  on  the  contract  claims,  amounts 
to  $1,376,539.84,  to  which  is  added  a  claim  of  $25,000  for  counsel  fees 
and  expenses  incurred  by  claimant  in  endeavoring  to  obtain  satisfac- 
tion thereof. 

It  being  the  desire  of  the  United  States  Government  to  urge  before 
this  Commission  only  such  claims  and  items  as  appear  to  be  well 
founded,  certain  items  forming  part  of  this  claim  as  originally  presented 
to  the  United  States  Department  of  State  have  been  erased  and  are  not 
now  insisted  upon. 

II. 

This  Ccrnimission  has  full  and  ample  jjowev  to  hear  and  determine  these 

claims. 

The  Orinoco  Shipping  and  Trading  Company  (Limited)  was  an 
English  corporation,  whose  stock,  however,  to  the  extent  of  about  99 
per  cent  thereof  was  owned  by  citizens  of  the  United  States.  The 
claimant  company,  the  Orinoco  Steamship  Compan}^,  was  organized 
by  said  stockholders  for  the  purpose  of  taking  over  and  conducting  the 
business  of  the  former  concern.  The  transfer  of  the  properties  and 
of  the  accrued  claims  to  the  claimant  company,  which  is  a  citizen  of 
the  United  States,  as  aforesaid,  was  made  on  April  1,  1902,  after  most 
of  the  claims  had  accrued  due. 

The  entire  capital  stock  of  the  Orinoco  Shipping  and  Trading  Com- 
pany (Limited),  with  the  exception  of  seven  shares  of  £1  each,  was 
and  from  the  organization  of  said  company  had  been  owned  by  indi- 
viduals who  were  citizens  of  the  United  States,  and  thereafter,  on 
January  31,  1902,  suf.h  American  shareholders  caus(Kl  to  be  organized 
under  the  laws  of  the  State  of  New  Jersey  the  Orinoco  Steamship 
Company,  your  claimant,  the  American  individuals  referred  to  becom- 
ing and  now  })eing  the  owners  of  more  than  90  per  cent  of  the  capital 
stock  thereof. 

By  virtue  of  the  transfer  or  assignment  for  value,  by  the  Orinoco 
Shipping  and  Trading  Company  (Limited),  to  the  Orinoco  Steamship 
Company,  of  all  of  the  assets  and  properties,  franchises  and  credits 
of  the  former  company,  including  book  accounts  and  pending  claims 
against  the  Government  of  Venezuela,  the  latter  company,  a  juridi(;al 
person  and  a  citizen  of  the  United  States  of  Amei-ica,  became  and  is 
now  the  legal  and  sole  owner  of  the  claims  here  presented. 


208  REPORT  OF  ROBERT  C.  MORRIS. 

Article  1  of  the  protocol  of  agreement  establishing-  this  high  Com- 
mission expressl}"  declares  that — 

All  daims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  *  *  *  and  whieh  shall  have  been  presented  to  the  commission 
hereinafter  named  by  the  Department  of  State  of  the  United  States  or  its  legation 
at  Caracas,  shall  he  examined  and  decided  by  a  mixed  commission,  which  shall  sit  at 
Caracas.     *    *    * 

This  provision  is  plain,  and  would  seem  to  permit  of  no  question  as 
to  the  jurisdiction  of  this  Commission  to  examine  and  decide  these 
claims  "according  to  justice"  and  "upon  a  basis  of  absolute  equity 
without  regard  to  objections  of  a  technical  nature  or  of  the  provisions 
of  local  legislation." 

It  is  certain  that  the  claimant  is  a  citizen  of  the  United  States  of 
America,  and  that  the  claims  now  here  presented  to  this  Commission 
b}"  the  Department  of  State  of  the  United  States  are  owned  by  it  and 
b}'  it  alone. 

III. 

The  va7'ious  claims  of  the  claimant  are  f  idly  supported  hy  the  evidence. 

As  far  as  the  first  claim  for  the  sum  of  $19,200  is  concerned,  it  being 
the  claim  for  the  balance  of  cash  due  upon  the  settlement  made  May 
10,  1900,  and  evidenced  by  the  written  agreement  of  settlement  with 
the  Government  of  Venezuela  itself,  there  can  be  no  ground  for 
dispute. 

The  facts,  moreover,  as  to  the  action  of  the  Venezuelan  Government 
in  first  granting,  then  extending,  and  finally  annulling  the  contract  for 
the  exclusive  navigation  of  the  interior  waterways  by  opening  the 
same  to  free  navigation,  are  amply  shown  by  documentary  evidence, 
and  there  would  seem  to  be  no  question  either  as  to  the  facts  in  this 
respect  or  as  to  the  liability  of  the  Venezuelan  Government  to  respond 
in  damages  for  its  breach  of  contract  in  such  connection,  the  only 
question  pertaining  to  this  item  likely  to  provoke  discussion  seemingly 
being  as  to  the  amount  of  the  damages  flowing  from  such  breach. 

The  evidence,  furthermore,  amply  supports  the  various  items  of  the 
third  claim.  The  claims  for  passage  and  freight  money  are  due 
strictly  in  accordance  with  the  terms  of  the  contract  and  the  tarilfs  long 
ago  fixed  thereunder.  The  claims  for  the  detention  and  use  of  various 
vessels  of  the  compan}^  by  the  Venezuelan  Government  are  proved  by 
the  official  orders  and  certificates  covering  the  same,  and  the  necessary 
expenses  of  refitting  the  ships,  owing  to  injuries  received  while  in  the 
hands  of  the  Venezuelan  authorities,  are  likewise  amply  proven  by 
vouchers,  affidavits,  and  other  documentar}'^  evidence. 

IV. 

There  can  he  no  question  as  to  the  Uahility  of  the  Ve7iezuelan  Govern- 
ment foi'  the  acts  complained  of 

With  respect  to  the  first  item  or  claim  for  $19,200,  being  the  second 
installment  of  cash  agreed  to  be  paid  in  furtherance  of  the  settlement 
of  May  10, 1900,  the  same  being  an  express  agreement  of  the  Govern- 
ment itself  to  pay  a  sum  certain  within  a  reasonable  time  thereafter, 


REPORT  OF  ROBERT  C.  MORRIS.  209 

and  now  long  overdue,  the  liability  of  the  respondent  Government  to 
pay  the  same  with  interest  would  seem  to  be  established  beyond 
dispute. 

In  addition  to  the  provisions  of  the  written  agreement  of  May  10, 
1900,  itself  (memorial,  p.  19),  the  liabilit}'  to  pay  such  sum  in  gold  has 
also  been  admitted  diplomaticalh"  (Diplomatic  Correspondence,  p.  36). 

In  the  case  of  Metzger  &  Co.  against  the  Republic  of  Haiti  (For- 
eign Relations  of  the  United  States,  1901),  submitted  to  arbitration  by 
agreement  between  the  United  States  and  Haiti,  where  the  respondent 
Government  before  the  arbitrator  sought  to  evade  the  effect  of  certain 
representations  and  admissions  thereabouts  made  by  its  duly  accred- 
ited representative,  the  arbitrator,  Hon.  William  R.  Da}' ,  disposed  of 
the  matter  in  the  following  language  (p.  270): 

1  am  of  opinion  that  this  arrangement  agreeing  to  settle  Metzger  &  Co.'s  griev- 
ances, promptly  accepted  by  the  secretary  of  state  for  foreign  relations  of  Haiti,  fol- 
lowed by  the  assurance  of  the  secretary,  conveyed  by  the  minister  to  the  State 
Department  at  Washington,  that  the  matter  had  been  settled  within  twenty-four 
hours,  constituted  a  diplomatic  agreement  between  the  two  countries  which,  upon 
settled  principles  of  international  law,  should  have  been  carried  into  effect.  It  is 
claimed  on  the  part  of  Haiti,  that  this  correspondence  amounted  only  to  an  agree- 
ment on  the  part  of  Haiti  to  use  its  good  offices  with  the  commune  of  Port  au 
Prince.  I  am  of  opinion  that  it  amounted  to  much  more  than  that.  *  *  *  It 
can  not  be  that  good  faith  is  less  obligatory  upon  nations  than  upon  individuals 
in  carrying  out  agreements.  *  *  *  I  do  not  understand  that  the  limitations 
upon  official  authority,  undisclosed  at  the  time  to  the  other  government,  prevent  the 
enforcement  of  diplomatic  agreements.  The  question  came  before  the  Chilean  Claims 
Commission  created  by  the  convention  of  August  7, 1892,  between  the  United  States 
and  Chile,  in  which  a  claim  was  made  upon  a  contract  entered  into  by  the  United 
States  minister  in  Chile,  in  making  which  the  Government  of  the  United  States 
claimed  the  minister  had  no  authority  and  denied  responsibility,  claiming  further 
that  the  agreement  w'as  in  violation  of  the  statutes  of  the  United  States,  and  that  the 
plaintiff  had  a  remedy  in  the  United  States  courts.  The  commission  decided  unani- 
mously that  it  was  immaterial  whether  the  minister  had  exceeded  his  authority  or 
not,  as  he  had  made  the  promise  as  the  representative  of  the  United  States  in  the 
name  of  his  Government,  which,  according  to  the  rules  of  responsibility  of  govern- 
ments for  acts  performed  by  their  agents  in  foreign  countries,  can  not  be  repudiated. 
In  the  present  case  there  is  no  claim  that  the  minister  was  unauthorized  to  make  the 
diplomatic  representation  stated.  On  the  contrary,  he  was  only  carrymg  into  effect 
the  instructions  of  his  Government.  The  learned  commission  referred,  in  support  of 
their  decision,  to  Calvo  Dictionaire  de  Droit  International,  Volume  II,  page  170,  and 
Calvo  Dictionaire  International,  Volume  I,  section  417;  Moore's  Digest  International 
Arbitration,  volume  4,  pages  3569-3571.  Nor  is  there  any  more  avail  in  the  argu- 
ment that  the  remedy  of  Metzger  &  Co.  is  to  be  sought  in  the  courts  of  Haiti  against 
the  commune.  Even  had  Metzger  &  Co.  such  a  right,  this  would  not  affect  the  right 
to  arbitrate  the  claim  as  has  been  done  in  this  case.  By  the  terms  of  the  protocol 
the  arbitrator  is  competent  to  take  jurisdiction  of  the  claim  so  far  as  the  liability  of 
the  Government  of  Haiti  is  concerned.  (4  Moore  International  Arbitrations,  p.  3571.) 
*  *  *  A  diplomatic  arrangement  fairly  and  honorably  entered  into  should,  in  my 
judgment,  be  carried  into  effect.     *    *    * 

An  admission  of  debt  made  in  the  course  of  diplomatic  negotiations 
and  reiterated  in  a  subsequent  offer  to  pay  the  amount  admitted  in 
certain  instaUments  (Diplomatic  Correspondence,  p.  88)  is  now  no 
more  to  be  denied  or  refuted  by  the  nation  which  made  it  than  any 
diplomatic  agreement. 

The  diplomatic  admi.ssion  of  the  debt  in  July,  1901,  and  the  subse- 
quent offer  to  pay  the  amount  thereof  in  installments,  absurdly  small 
though  they  were,  was  also  in  effect  a  diplomatic  representation  as  to 
the  validity  and  binding  force  internationally  of  the  entire  settlement 
evidenced  by  the  agreements  in  writing  of  May  10,  1900. 

S.  Doc.  317,  58-2 14 


210  REPORT  OF  ROBERT  C.  MORRIS. 

As  to  the  liability  of  Venezuela  with  re.spect  to  the  claim  for  com- 
pensation for  damages  suti'ered  by  reason  of  the  annullment  of  the 
concession  of  navigation  l)y  the  arbitrary  decree  of  October  5,  1900, 
there  would  seem  to  be  no  more  don})t. 

That  the  concession  contract  for  the  exclusive  navigation  of  the 
interior  mouths  of  the  Orinoco  Kiver  by  yessels  engaged  in  foreign 
trade  constituted  a  valua))le  property  right  would  seem  to  be  indis- 
putable. That  the  contract  was  legal  and  nuitually  binding  will  hardly 
be  controverted.  Acting  upon  the  faith  of  the  grant,  the  claimant 
company  and  its  predecessoi's  in  interest  liad  laid  out  over  $940,000  in 
United  States  currenc}^  in  acquiring  ships  and  preparing  to  do  and 
perform  the  various  services  incident  to  the  business  of  a  common 
carrier  in  those  waters.  In  addition  to  promoting  the  commerce  of 
the  country  and  providing  for  the  convenient  movement  of  its  inhab- 
itants and  their  goods,  and  for  the  transportation  of  its  troops  and 
stores,  the  Venezuelan  Government  reserved  to  itself  a  distinct  advan- 
tage, of  which  it  has  continuously  availed  itself,  of  having  transported 
its  officials,  employees,  troops,  and  supplies  at  one-half  of  the  ordinary 
tariff  rates. 

That  the  concession  was  a  valuable  one  is  evidenced  by  the  fact  that 
during  the  years  1899-1901,  although  revolution  was  rife  and  the 
entire  business  of  the  countr}^  Avas  much  disturbed,  the  average  net 
earnings  of  the  company's  steamers  plying  the  waters  covered  b}'  said 
concession  amounted  to  $50,578.95  per  annum. 

That  a  sovereign  nation  is  bound  to  indemnify  foreigners  for  its  fail- 
ure to  perform  its  contracts  or  to  protect  their  property  within  its  bor- 
ders is  settled  in  principle.  (Phillimore,  Int.  Law,  vol.  2,  p.  8; 
Martens,  Droit  des  Gens,  vol.  3,  ch.  3,  p.  299;  Wildman,  Int.  Law, 
193;  Woolse}^  Int.  Law,  38-112;  Report  United  States  and  Vene- 
zuelan Mixed  Commission,  p.  297;  Vattel,  book  2,  ch.  8,  sec.  104; 
Bluntschli,  Int.  Law  Cod.,  sees.  386,  380.) 

How  much  greater  is  the  responsibility  of  a  nation  which  deliber- 
ately and  without  just  cause  destro^^s  the  property  of  such  foreigners? 
That  a  contract  right  founded  upon  a  consideration  good  in  law  to  do 
a  thing  in  the  contract  specified  is  a  property  right  is  also  settled; 
that  a  grant  of  a  monopoly  of  navigation  or  of  carriage  for  revenue 
or  hire  is  a  property  right  is  equally  clear. 

Article  691  of  the  Civil  Code  of  Venezuela  expressly  recognizes  and 
declares  that  a  property  right  may  rest  in  contract  alone  (por  efecto 
de  los  contratos),  and  as  the  concession  or  grant  of  a  monopoly  as  here 
results  from  and  rests  in  the  contract  of  the  parties  to  it,  it  seems  cer- 
tain that  such  a  concession  or  grant  is  properly  within  the  definition 
of  Venezuelan  municipal  law,  as  it  has  repeatedly  been  declared  to  be 
by  high  tribunals  administering  international  law.  (See  case  of  the 
Delagoa  Bay  Railwa}^  2  Moore  Int.  Arbitrations,  pp.  1879  et  seq. ; 
"The  Cheek  Claim,"  id.,  p.  1899.) 

In  the  very  recent  case  of  the  United  States  against  the  Republic  of 
San  Salvador,  respecting  the  claim  of  the  Salvador  Commercial  Com- 
pany, usually  referred  to  as  the  case  of  the  "El  Triunfo  Company," 
the  controversy  had  its  origin  in  schemes  to  establish  and  develop  a 
port  on  the  bay  of  Jiquilisco,  in  the  Republic  of  San  Salvador,  and 
the  wrongful  revocation  by  San  Salvador  of  its  concession  for  such 
purpose  granted  to  the  El  Triunfo  Company.  The  grantee's  privileges 
were  exclusive  as  to  steam  navigation  of  the  port  and  the  transship- 


REPORT  OB'  ROBERT  C.  MORRIS.  211 

iiient  of  passengers  and  merchandise  exported  through  the  port  for 
the  period  of  twenty-four  3'ears.  The  contract  concession  in  that  case 
contained  man}-  provisions  similar  to  those  of  the  contract  concession 
in  the  case  here  under  consideration.  The  concessionaire  company 
entered  upon  the  performance  of  its  obligations  as  fixed  by  the  terms 
of  the  concession,  and  conducted  the  business  during  the  years  1895, 
1896,  and  1897,  without,  however,  deriving  any  profit  therefrom. 
During  the  first  six  months  of  1898  the  company's  receipts  exceeded 
all  losses  and  expenses  of  every  kind  by  the  sum  of  $17,000.  Early 
in  1899  the  President  of  San  Salvador  issued  an  edict  closing  the  port 
against  all  importations,  thus  striking  down  and  practically  canceling 
and  destroying  the  concession  which  that  Government  had  theretofore 
granted. 

In  the  opinion  of  the  umpire,  Sir  Henry  Strong,  concurred  in  by 
the  American  Commissioner,  Mr.  Don.  M.  Dickinson,  it  is  said  that — ■ 

It  is  not  the  denial  of  justice  by  the  courts  alone  which  may  form  the  basis  for 
reclamation  against  a  nation,  according  to  the  rules  of  international  law.  "There 
can  be  no  doubt,"  says  Halleck,  "that  a  state  is  responsible  for  the  acts  of  its  rulers, 
whether  they  belong  to  the  legislative,  executive,  or  judicial  department  of  the  gov- 
ernment, so  far  as  the  acts  are  done  in  their  official  capacity." 

*  -x-  *  *  *  *  * 

Said  Mr.  Fish  to  Minister  Foster:  "Justice  may  as  much  be  denied  when  it  would 
be  absurd  to  seek  it  by  judicial  process  as  if  denied  after  being  so  sought." 

Again,  this  is  not  a  case  of  the  despoliation  of  an  American  citizen  by  a  private 
citizen  of  Salvador,  on  which,  on  appeal  to  the  courts  of  Salvador,  justice  has  been 
denied  the  American  national,  nor  is  it  a  case  where  the  rules  applying  to  that  class 
of  reclamations,  so  numerous  in  international  controversies,  have  to  do.  This  is  a 
case  where  the  parties  are  the  American  nationals,  and  the  Government  of  Salvador 
itself  as  a  party  to  the  contract;  and  in  this  case,  in  dealing  with  the  other  party  to 
the  contract,  the  Government  of  Salvador  is  charged  with  having  violated  its  prom- 
ises and  agreements  by  destroying  what  it  agreed  to  give,  what  it  did  give,  and 
what  it  was  solemnly  bound  to  protect. 

So  one  of  the  most  respected  authorities  in  international  law,  Lewis  Cass,  has  laid 
down  the  undoubted  rule  and  its  exception,  as  broad  as  the  rule,  when  he  says  that 
"  When  citizens  of  the  United  States  go  to  a  foreign  country,  they  go  with  an  implied 
understanding  that  they  are  to  obey  its  laws  and  submit  themselves  in  good  faith  to 
its  established  tribunals.  When  they  do  business  with  its  citizens  or  make  private 
contracts  there,  it  is  not  to  be  expected  that  either  their  own  or  the  foreign  govern- 
ment is  to  be  made  a  party  to  this  business  or  these  contracts,  or  will  undertake  to 
determine  any  dispute  to  which  they  give  rise.     *    *    * 

"The  case  is  widely  different  when  the  foreign  government  becomes  itself  a  party 
to  important  contracts  and  then  not  only  fails  to  fulfill  them  but  capriciously  annuls 
them,  to  the  great  loss  of  those  who  have  invested  their  time,  labor,  and  capital  in 
their  reliance  upon  its  good  faith  and  justice." 

In  any  case,  by  the  rule  of  natural  justice  obtaining  universally  throughout  the 
world  wherever  a  legal  system  exists,  the  obligation  of  parties  to  a  contract  to  appeal 
for  judicial  relief  is  reciprocal.  If  the  Republic  of  Salvador,  a  party  to  the  contract 
which  involved  the  franchise  to  El  Triunfo  Company,  had  just  ground  for  complaint 
that  under  its  organic  law  the  grantees  had,  by  misuser  or  nonuser  of  the  franchise 
granted,  brought  upon  themselves  the  penalty  of  forfeiture  of  their  rights  under  it, 
then  the  course  of  that  Government  should  have  been  to  have  itself  appealed  to  the 
courts  against  the  company  and  there,  by  the  due  process  of  judicial  proceedings, 
involving  notice,  full  opportunity  to  be  heard,  consideration,  and  solemn  judgment, 
have  invoked  and  secured  the  remedy  sought. 

It  is  abhorrent  to  the  sense  of  justice  to  say  that  one  party  to  a  contract,  whether 
such  party  Ije  a  private  individual,  a  monarch,  or  a  government  of  any  kind,  may 
arbitrarily,  without  hearing,  and  without  impartial  procedure  of  any  sort,  arrogate 
the  right  to  condemn  the  other  party  to  the  contract,  to  pass  judgment  upon  him  and 
his  acts,  and  to  impose  upon  him  the  (extreme  penalty  of  forfeiture  of  all  his  rights 
under  it,  including  his  property  and  his  investment  oi'  capital  made  on  the  faith  of 
that  contract. 


212  REPORT  OF  ROBERT  C.  MORRIS. 

Before  the  aibitrainent  of  natural  justice  all  [tarties  to  a  contract,  as  to  their  recip- 
rocal rijjhts  ami  their  reci])rocal  remedies,  are  of  equal  dignity  and  are  equally  enti- 
tled to  invoke  for  their  redress  and  for  tlieir  defense  the  hearing  and  the  judgment 
of  an  impartial  and  disinterested  tribunal. 

It  follows  that  the  Salvador  Commercial  Company  and  the  other  nationals  of  the 
United  States  who  were  shareholders  in  El  Triunfo  Company,  as  hereinbefore  named, 
are  entitled  to  compensation  for  the  result  of  the  destruction  of  the  concession  and 
for  the  appropriation  of  such  property  as  belonged  to  that  company    *    *    *. 

The  annulment  by  the  Government  of  Venezuela  of  the  concession 
contract  in  the  case  at  bar,  without  notice  to  the  other  party  to  the 
contract  and  without  affordino^  it  an  opportunity  to  be  heard,  puts  that 
Government  in  the  position  of  having  destroyed  property  of  the 
claimant  compan}',  and  entitles  it  to  receive  by  way  of  compensation 
therefor  substantial  damages. 

There  can,  we  think,  be  but  little  question  as  to  the  amount  of  the 
damages  suffered  by  the  claimant  in  such  respect.  Whether  we  regard 
as  a  basis  of  computation  the  value  assigned  to  the  contract  concession 
in  the  settlement  of  the  company's  claims  on  May  10,  1900,  whereby 
the  extension  of  six  years  further  time  was  secured,  or  whether  we 
regard  the  evidence  as  to  the  earning  capacity  of  the  company,  in 
eitlier  event  the  amount  claimed  in  the  memorial,  viz,  $1,209,701.05, 
is  shown  to  be  a  fair  and  reasonable  estimate  of  the  loss  accruing  to  this 
company  by  the  unwarranted  destruction  of  its  property  rights.  In 
this  connection,  it  is  interesting  to  observe  that  in  the  El  Triunfo  case 
above  cited  the  umpire  awarded  to  the  claimant  the  sum  of  $750,000  as 
damages  for  the  annulment  of  its  concession,  although  its  invested 
capital  approximated  but  a  fourth  of  that  outlaid  by  the  present 
claimant,  and  its  business,  with  the  exception  of  a  single  period  of  a 
few  months,  had  been  done  at  a  loss,  while  in  the  case  at  bar  net  earn- 
ings are  shown  averaging  more  than  $56,000  per  annum. 

As  to  the  items  of  the  third  claim,  we  think  there  can  also  be  no 
question  as  to  the  liability  of  the  Venezuelan  Government.  Such  of 
the  items  as  are  for  passage,  freight,  etc.,  are  expressly  due  under  the 
terms  of  the  contract,  in  accordance  with  the  rate  of  tariff  as  fixed 
under  that  contract.  That  the  Venezuelan  Government  is  liable  for 
the  use  of  the  vessels  of  the  compan}^  taken  by  it  for  its  own  use,  and 
for  damages  to  the  vessels  while  in  its  possession,  and  for  the  neces- 
sary repairs  which  had  to  be  made  upon  them  in  consequence  thereof, 
and  for  stores  and  supplies  taken  from  the  company's  ships  by  the 
military  officers,  and  that  it  is  equally  liable  for  national  imposts 
illegally  levied,  there  can,  it  would  seem,  be  no  question.  The 
amounts  of  the  various  items  of  claims  on  such  accounts  are  fully  and 
particularly  set  forth  in  the  proofs  in  support  thereof. 

In  regard  to  the  item  of  $61,336.20  claimed  for  wrongful  discrimi- 
nations against  the  company  by  the  consuls  of  the  Venezuelan  Govern- 
ment in  refusing  to  clear  the  company's  vessels  for  the  Orinoco  ports 
during  the  months  of  June  to  November,  1902,  inclusive,  attention  is 
invited  to  the  typewritten  copies  of  certificates  of  the  harbormaster  at 
Port  of  Spain,  Trinidad,  from  which  it  appears  that,  notwithstanding 
the  then  existence  of  the  so-called  blockade  of  the  Orinoco  River  and 
ports,  which  was  made  the  basis  of  the  consul's  refusals  to  clear  the 
claimant  compan^^'s  steamers,  said  ofiicial  or  his  vice-consul  did  clear 
for  such  ports  on  several  occasions  ships  laden  with  general  cargo 
belonging  to  other  owners,  viz,  the  AUanzd  and  the  Rescue^  and  fur- 
ther, that  1,375  vessels  of  various  sizes,  all  flying  the  Venezuelan  flag, 


REPORT  OF  ROBERT  C.  MORRIS.  213 

and  with  a  few  exceptions  in  ballast,  all  cariyiug  g-eneral  cargo,  viz, 
cocoa,  balata,  g"um,  rubber,  oxen,  mules,  horses,  asses,  goats,  pigs, 
hides,  and  the  like,  entered  the  port  of  Port  of  Spain  from  various 
ports  in  Venezuela,  including  the  Orinoco  River  ports,  and  practically 
the  same  number  of  said  vessels  left  said  port  during  said  period  laden 
with  general  provisions,  hardware,  dry  goods,  etc. 

Unlawful  discrimination  by  governments  in  the  affairs  of  neutrals 
resulting  in  interruption  of  business  and  consequent  loss  of  profits  and 
receipts,  affords  a  basis  of  reclamation  and  corresponding  liability  to 
answer  for  damages  equally  with  other  positive  torts. 

There  can  be,  from  the  facts  of  this  case,  no  question  that  the  Gov- 
ernment of  Venezuela  is  liable  to  the  claimant  upon  each  of  the  claims 
presented  and  in  the  full  amount  claimed. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  of  1 

the  Orinoco  Steamship  Company,  claimant,       i  -^^     .,  o 

V. 

The  Republic  of  Venezuela. 

MOTION  to  amend  MEMORIAL. 

Now  comes  the  United  States  on  behalf  of  the  Orinoco  Steamship 
Company,  claimant,  by  Robert  C.  Morris,  their  agent,  and  moves  leave 
of  this  honorable  Commission  to  amend  the  memorial  heretofore  filed 
in  the  above-entitled  claim  in  the  following  particulars: 

(1)  On  page  6,  in  section  No.  6,  after  the  word  "value"  strike  out 
the  words  "so  acquired  by  your  memorialist,"  and  insert  in  place 
thereof  the  words  "theretofore  owned  by  the  Orinoco  Shipping  and 
Trading  Company,  Limited;"  so  that  the  same  shall  read  as  follows: 

6.  Among  other  franchises  and  property  rights  of  value  theretofore  owned  by  the 
Orinoco  Shipping  and  Trading  Company,  Limited,  was  the  exclusive  right,  etc. 

(2)  On  page  25,  in  section  15,  line  3,  after  the  word  "Limited" 
insert  the  following  words  "having  theretofore  fully  performed  the 
obligations  on  its  part  required  to  be  performed  by  and  under  said 
contract  of  June  8,  1894,  and;"  so  that  the  same  shall  read  as  follows: 

15.  Notwithstanding  the  promulgation  of  said  executive  decree  of  October  5,  A.  D. 
1900,  the  Orinoco  Shipping  and  Trading  Company,  Limited,  having  theretofore  fully 
performed  the  ol)ligations  on  its  ))art  required  to  be  performed  i)y  and  under  said 
contract  of  June  8,  1894,  and  with  the  object  and  purpose  of,  etc. 

Robert  C.  Morris, 

Agent  of  the  United  States. 

The  Orinoco  Steamship  Company.     (Claim  No.  19.) 

Filed  July  14,  1903. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United,  States. 
J.  Padron  Uztariz. 


214  REPORT  OF  KOHERT  (\  MORRIS. 

lli>iioi'ahl(  Mtinherx  <>J'  tli(    Aiiui'tcan-  ]'<'/ir.:iui«fi  Mixed  Oomiaisslon: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  stuaied  with  due  care  the  declaration  in  the  claim  of 
the  Orinoco  Steamship  Conijjan}',  and  submits: 

The  reclamation  of  the  Orinoco  Steamship  Company  is  ])ased  on  the 
rights  and  faculties  which  were  transferred  by  another,  an  English 
.company,  styledthe  Orinoco  Shippingand  Trading  Company  (Limited), 
which  latter  company  assumed  to  have  the  right  to  claim  from  the 
Venezuelan  Government  for  breach  of  contracts  of  which  it  was  the 
cessionary.  We  shall  hereafter  set  forth  whatever  may  be  relevant 
in  respect  to  this  transfer  and  in  regard  to  the  character  of  American 
citizen  which  the  claimant  company  seeks  to  arrogate  to  itself. 

In  the  tirst  place,  the  simple  admission  by  the  Commission  of  a 
reclamation  like  that  with  which  we  are  dealing,  for  decision  by  that 
body,  is  an  act  which  in  itself  clashes  openly  and  visibly  with  the  rules 
established  by  the  protocol  signed  in  Washington  the  ITth  of  February 
of  this  year,  in  virtue  of  which  the  Commission  has  been  created.  In 
effect  the  protocol  referred  to  stipulates  that  the  questions  to  be  sul)- 
mitted  to  the  international  tribunal  shall  be  decided  on  the  basis  of 
and  in  accordance  with  the  most  absolute  equity,  and  the  Commis- 
sioners have  sworn  to  decide  according  to  this  rule;  nevertheless,  the 
Commission  would  completely  set  aside  that  ])asis  of  equity,  if  it  should 
admit  for  its  decision  a  question  that  has  arisen  between  parties  bound 
by  contracts  concluded  with  all  the  formalities  of  law,  hearing  only  the 
allegations  and  arguments  of  a  single  one  of  the  contracting  parties  and 
depriving  the  other  of  all  its  means  of  defense  and  of  all  its  exceptions; 
and  in  no  other  way  would  the  Commission  proceed  in  the  case  of  admit- 
ting to  trial  the  claim  of  the  said  company,  because  Venezuela,  one  of  the 
contractingparties,  and  with  the  same  rights  and  faculties  on  its  own  part, 
could  not  defend  itself  before  th.e  Commission  as  it  could  before  a  court  of 
law;  and  so  much  is  this  a  fact,  that  although  Venezuela  has  claims  of 
very  good  origin  to  make  of  the  company,  it  can  not  substantiate  them 
before  the  Commission,  which  lacks  jurisdiction  to  determine  these 
questions.  Therefore,  there  would  be  favored  openly  and  greatly  a 
single  one  of  the  parties  to  the  detriment  and  injury  of  the  rights  of 
the  other;  there  would  be  granted  in  advance,  without  trial  of  the  case, 
a  better  right  and  a  more  advantageous  situation  to  one  only  of  the 
parties,  depriving  the  other  of  all  its  legitimate  means  of  defense;  and 
as  may  be  seen  by  the  mere  presentation  of  these  considerations,  with- 
out the  need  of  further  demonstration.  Such  respective  situation  of 
the  two  parties  is  in  open  opposition  to  the  most  simple  principles, 
of  equity;  for  one  of  the  parties,  facilities,  privileged  means  of  proof 
and  many  other  advantages,  whilst  for  the  other  party,  deprivation  of  all 
its  ordinary  legal  recourses,  the  rejection  of  its  rights  in  advance  and  the 
impossibility  of  supporting  its  charges;  Venezuela  can  not  claim  before 
the  Mixed  Commission  the  losses  and  damages  which  may  be  caused 
it  b}^  the  lack  of  compliance  with  the  contracts  which  it  has  concluded 
with  American  citizens.  Thus,  from  this  point  of  view  the  Commis- 
sion, proceeding  in  accordance  with  its  fundamental  rule,  which  is  the 
strictest  equity,  should  reject  this  reclamation. 

And  the  said  reclamation  should  also  be  set  aside  because,  as  the 
claimants  base  their  reclamation  on  contracts  which  they  have  con- 
cluded with  Venezuela,  or  rather,  contracts  in  which  they  have 
substituted  themselves  voluntarily  and  deliberately  for  Venezuelan 


REPORT  OF  ROBERT  C.  MORRIS.  215 

citizens,  there  must  be  established  in  advance  whether  those  con- 
tracts are  valid  or  not,  and  if  they  are  valid,  as  in  effect  they  are, 
all  and  every  one  of  their  clauses  must  be  equally  valid  and  obli- 
gatory; none  of  these  clauses  can  be  set  aside  nor  greater  legal 
force  be  attributed  to  one  than  to  another;  and  therefore,  just  as 
full  legal  force  is  attributed  to  the  clauses  which  the  claimant  com- 
pany invokes  on  which  to  base  its  reclamation,  so  also  should  full 
legal  force  be  attributed  to  the  clauses  of  those  contracts  in  Avhich  the 
contracting  party — who  has  to-day  been  substituted  b^^  third  parties 
who  have  accepted  those  contracts  in  all  their  parts  and  provisions, 
voluntarily  and  deliberatelj' — obligates  himself  to  have  recourse  to  the 
Venezuelan  authorities  for  the  adjustment  of  every  question  which 
may  arise  between  the  parties,  and  that  these  questions  can  never  be 
the  motive  or  occasion  of  diplomatic  or  international  reclamations. 
Therefore,  if  the  clause  is  valid  on  which  the  claimant  supports  him- 
self and  by  which  Venezuela  obligates  herself  to  concede  to  the  con- 
tracting party  the  right  to  establish  a  line  of  steamers  between  Ciudad 
i3olivar  and  Maracaibo  and  to  grant  to  the  contracting  part}^  the 
exclusive  use  of  same  for  a  fixed  period  of  time,  it  is  in  all  respects 
eminently  just,  equitable,  reasonable  that  for  both  parties  there 
should  also  have  force  and  be  obligatory  the  provision  which  contains 
the  clause  relative  to  the  authorit}"  which  should  adjust  the  questions 
between  the  parties;  and  further,  it  is  also  eminently  just,  equitable, 
reasonable,  indisputable,  that  if  said  contracting  party  violates  this 
clause  and  seeks  to  give  to  his  reclamations  an  international  and  diplo- 
matic character,  he  should  be  obliged  in  virtue  of  the  same  basis 
which  he  invokes  to  have  recourse  to  the  authorities  which  he  himself 
voluntarily  and  deliberately  appointed  for  the  adjustment  of  contro- 
versies between  the  contracting  parties.  Therefore,  the  honorable 
Commission  would  abandon  its  fundamental  basis  of  absolute  equity 
from  the  moment  when  it  should  permit  one  of  the  contracting  parties 
to  violate  in  so  apparent  and  arbitrary  a  manner  the  contract  on  which 
it  bases  its  claims;  the  Commission,  with  no  reasonable  motive,  with 
no  legal  grounds,  would  set  equity  completely  aside  if  it  should 
esteem  as  valid  only  those  clauses  of  the  contract  which  favor  the 
claimant  party,  and  should  annul  those  others  which  serve  as  guaranty 
to  both  the  parties,  since  all  the  provisions  contained  in  the  contract, 
which  is  the  law  in  force  between  the  parties,  are  equally  valid  and 
obligatory  for  both  the  contracting  parties.  For  these  reasons,  which 
are  within  the  grasp  of  the  most  ordinary  intelligence,  reasons  which 
not  only  are  in  perfect  accord  wnth  the  legislation  established  in  all 
cultivated  and  civilized  countries,  but  also  with  the  most  elementary 
principles  of  (Hjuity  and  justice,  the  honorable  Commission  should 
reject  the  reclamation  that  is  here  dealt  with,  because  by  the  mere  act 
of  introducing  same,  the  claimant  party  violates  in  the  most  flagrant 
manner  the  contract  on  wliich  h(».  seeks  to  base  his  claims. 

According  to  the  honorable  agent  of  the  Government  of  the  United 
States  of  America,  the  reclamation  of  the  Orinoco  Steamship  Company 
contains  three  points,  to  wit: 

First.  The  balance  of  100,000  bolivars  which  Venezuela  owes  to  the 
Orinoco  Shipping  and  Trading  Company  (Limited),  by  virtue  of  the 
transaction  which  on  May  10, 1900,  was  concluded  between  both  contract- 
ing parties  and  in  which  the  Government  of  Venezuela  for  ^00,000  boli- 
vars which  said  company  was  to  receive,  paid  all  the  claims  which  up 


21(>  RKl'Oirr    Ol'"    ROliKRT    C.   MORRIS. 

to  that  date  ami  for  all  niotix  os  were  held  by  the  eonipany  against  the 
Governinenl;  iiicliulino-  in  that  amoimt  the  payment  of  all  the  serviecs 
whieh  the  company  might  have  to  lend  to  the  Government  to  the  1st 
of  July  of  the  same  year.  The  company  received  on  that  occasion 
100,000  bolivars,  and  the  remaining- 100,000  bolivars  are  those  which 
the  new  company,  the  Orinoco  Steamship  (-ompany,  now  claims.  This 
part  of  the  claim  is  sufficiently  opposable;  in  the  first  place,  because 
a  new  creditor  has  been  substituted  for  the  former  one  without  notice 
to  and  without  the  consent  of  the  debtor,  and  in  credits  which  are  not 
payable  to  order  notilication  to  the  debtor  is  necessary  for  their 
transfer,  which  requisite  has  here  been  omitted,  because  Venezuela 
did  not  subscribe  to  an}^  obligation  to  the  order  of  its  original  creditor 
for  those  100,000  bolivars.  And,  on  the  other  hand,  although  this 
credit  of  the  original  company  is  evidenced  by  a  document  which 
has  full  legal  force,  there  is  not  for  this  reason  extinguished  or 
renounced  the  right  which  Venezuela  has  to  collect  the  amounts  which 
the  original  company  is  owing  to  her  and  to  set  over  against  it  the  cor- 
responding compensation;  and  further,  the  cessionary  company  bound 
itself  in  the  very  document  on  which  it  bases  this  part  of  its  reclama- 
tion, to  the  provision  that  every  question  which  might  arise  by  reason 
of  that  agreement  should  be  decided  precisely  by  the  tribunals  of 
Venezuela  and  could  never  open  the  way  to  international  reclamations. 
According  to  what  has  been  set  forth,  this  part  of  the  claim  is  not  in 
order;  first,  because  the  Government  owes  nothing  to  the  Orinoco 
Steamship  Company;  secondly,  because  if  the  Government  owes  any- 
thing in  the  said  relation  to  the  Orinoco  Shipping  and  Trading  Com- 
pany, Limited,  this  company  owes  also  to  Venezuela  net  amounts  in 
various  other  relations,  and  it  is  necessary  to  settle  the  compensation 
in  order  to  determine  delinitel}^  which  is  creditor  and  which  debtor; 
and  thirdly,  because  the  company  on  concluding  that  transaction 
expressly  bound  itself  to  submit  all  differences  to  the  tribunals  of 
Venezuela,  and  from  the  moment  that  it  ignores  this  capital  agree- 
ment Venezuela  has  also  the  right  to  ignore  her  obligations,  now  that 
her  rights  have  been  denied.  Such  a  decision — that  is  to  say,  that  the 
honorable  Commission  should  reject  this  part  of  the  reclamation  (in 
the  event  that  in  spite  of  the  reasons  above  set  forth  it  should  elect  to 
admit  the  same  to  a  hearing)  for  the  weighty  circumstances  alleged, 
all  of  which  are  based  on  the  most  absolute  and  evident  equity — is 
formally  imposed. 

Second.  In  the  second  place,  the  claimant  compan}^  bases  a  part  of 
its  reclamation  on  the  fact  that  the  National  Government,  by  resolu- 
tion of  the  5th  of  October,  1900,  on  opening  to  free  navigation  the 
Macareo  and  Pedernales  channels,  annulled  by  the  act  the  concession 
which  the  company  claims  to  have  obtained  for  the  exclusive  navi- 
gation of  those  channels.  Such  a  basis  is  also  absolutely  out  of 
order,  because  the  resolution  of  the  Government  has  not  injured  nor 
can  injure  in  an}^  manner  the  concession  of  the  company,  because,  as 
is  stated  b}-  the  fundamental  contracts — and  as  may  reaiiil}^  be  seen — 
the  ends  of  that  concession  are  entirely  distinct  and  foreign  to 
the  present  claims  of  the  company;  the  contracts  state  that  the 
concession  is  for  the  establishment  of  a  line  of  steamers  hetimen  Ciudad 
Bolivar  and  Maracaiho^  and  the  fact  that  the  Government  of  Vene- 
zuela should  subsequently  open  to  navigation  two  mouths  of  the 
Orinoco  previously  closed  (from  the  3^ear  1893),  can  not  injure  that 


REPORT  OF  ROBERT  C.  MORRIS.  217 

concession  in  any  manner;  the  navigation  of  the  Orinoco  is  free,  and 
that  circumstance  does  not  injure  any  line  of  steamers  nor  any  indi- 
vidual, but  rather  it  favors  all.  The  pretensions  of  the  claimant  in 
the  respect  of  which  we  are  treating  are  in  every  way  inadinissihle 
(intl  ahsH?'d  and  unfounded;  the  concession  of  which  the  contract  treats 
is  for  the  establishment  of  a  line  of  steaiiie7's  between  C'ludad  Bolivar 
and  Maracaibo^  which  does  not  imply  that  only  the  holder  of  that  con- 
cession shall  have  the  exclusive  ri<jht  to  navigate  in  the  Orinoco  River; 
such  a  pretension  is  an  untenable  absurdity;  and  so  much  the  more,  in 
that  the  company  has  not  had  its  steamers  in  service.  To  the  con- 
tracting party,  whose  rights  were  transferred  to  the  Orinoco  Shipping 
and  Trading  Compan}",  Limited,  there  was  never  granted  the  exclu- 
sive navigation  of  the  Macareo  and  Pedernales  cliannels^  nor  anything 
of  the  sort;  these  channels  had  been  closed,  to  shut  out  contraband 
trade,  from  the  year  1893,  and  when  the  contract  was  signed,  in  1894, 
there  was  permitted^  there  was  simpl}^  permitted  to  the  contracting 
part}^  the  navigation  of  same,  and  a  permission  is  very  far  from  being 
the  same  as  the  company  to-day  pretends  is  the  privilege  of  exclusive 
navigation  by  the  Macareo  and  Pedenudes  channels.  If  on  the  basis 
of  this  simple  permission  the  company  claims  to  have  exclusive  priv- 
ilege of  navigation  in  the  Orinoco  River,  it  might  also  claim  the 
exclusive  navigation  in  that  part  of  the  sea  which  lies  in  the  route  from 
Ciudad  Bolivar  to  Maracaibo;  one  thing  is  as  absurd  as  the  other. 
That  privilege  of  exclusive  navigation  has  never  been  granted  by  the 
Government  of  Venezuela;  it  is  not  stated  in  the  contract  nor  does 
anything  therein  cause  it  to  be  inferred;  it  is  in  itself  an  absurdity. 
Thus,  therefore,  these  grounds  of  the  reclamation  should  be  rejected  and 
everything  which  it  contains  relative  to  same  should  be  blotted  out. 

Third.  In  regard  to  the  third  foundation  of  the  reclamation,  the 
Orinoco  Shipping  and  Trading  Compan}',  Limited,  and  not  the  Ori- 
noco Steamship  Company,  has  the  right  to  payment  for  the  services 
which  it  has  lent  the  Government  of  Venezuela,  but  in  accordance  with 
the  special  tariffs  which  have  been  agreed  to  between  them  both. 

The  claimant  company  states,  as  a  basis  to  its  claim,  that  when  in 
Ma}^  1900,  it  claimed  from  the  Government  of  Venezuela  $532,996.85 
it  was  satisfied  to  reduce  this  amount  to  200,000  bolivars,  because  its 
contract  of  navigation  was  extended  for  six  years  more;  that  is  to  say, 
six  years  which  should  connnence  to  run  on  the  8th  day  of  June,  1909. 
In  a  word,  the  company  claims  that  it  paid  to  the  Government  of  Vene- 
zuela a  sum  which  was  deducted  from  the  amount  of  its  reclamation 
for  the  concession  of  the  six  3^ears'  extension.  Such  a  contention  is 
absolutely  false,  because,  as  may  be  ver}^  well  seen  by  the  document 
of  the  transaction  of  May  10, 1900,  the  extension  does  not  figure  therein 
as  estimated  in  any  amount  or  in  any  other  manner,  and  the  document 
of  the  transaction  being  that  which  contained  the  bases  and  results  of 
that  compact,  it  is  clear  that  such  an  important  factor  should  not  be 
omitted,  and  therefore  the  claimant  can  not  allege  that  consideration 
which  is  not  anywhere  in  evidence  nor  which  may  be  presumed  to  have 
existed.  Neithei'  ran  he  support  himself  on  the  fortuitous  cii'cum- 
stance  that  the  extension  of  the  concession  and  the  transaction  bear  the 
same  date,  because  basing  himself  on  that  circumstance,  entirely  for- 
tuitous, he  could  also  allege  that  all  the  acts  of  the  Government  on 
that  day  are  connc(;ted  with  tli<^  transaction.  The  Executive  resolution 
which  granted  the  extension  of  six  years  ecjually  fails  to  contain  the 


218  RKi'oirr  ok  koijkrt  c.  morris. 

ciiviiiUirtiinco  which  the  couipuny  invokes,  nor  is  there  in  that  resolu- 
tion even  a  word  from  w^hich  it  may  be  inferred  that  the  company  paid 
for  that  extension,  as  it  pivtends,  but  on  the  contrary  it  subjects  it  to 
certain  conditions  with  which  the  compan>'  has  not  complied.  There- 
fore thei'e  is  no  connection  of  any  sort  between  the  transaction  and 
the  extension,  and  thus  the  company  can  not  invoke  as  a  basis  for  its 
reclamation  the  assertion  tliat  it  paid  to  the  Government  an  amount 
given  to  the  end  that  said  extension  sliould  l)e  granted  to  it.  The 
resolution  and  the  transaction  have  no  connection  whatever  and  they 
can  not  be  considered  as  bound  together  ))}'  the  simple  statement  of 
one  of  the  interested  parties.  In  the  transaction  there  were  no  other 
grants  than  those  which  are  recited  by  the  document  that  was  sub- 
scribed to  by  the  parties  for  that  purpose,  and  to  that  document  which 
furnishes  full  evidence  between  the  parties  there  can  not  be  given  a 
greater  extension  than  that  w^hich  it  has  in  itself. 

It  is  also  absolutely  false,  as  has  already  been  demonstrated,  that 
the  interests  of  the  compan}"  have  sufl'ered  detriment  by  virtue  of  the 
Executive  resolution  of  October  5,  1900,  because,  as  has  been  said, 
the  free  navigation  of  the  Macareo  and  Pedernales  channels  does  not 
in  any  way  affect  its  rights,  because  its  concession  is  not  for  the  exclu- 
sive oiavigation  of  said  eJiannels  as  it  pretends,  but  only  for  the  estab- 
lishment of  a  line  of  steamers  hetioeen  Ciudacl  Bolivar  and  Mara- 
caibo^  and  it  is  simply  j96/'m?V2^^<^  to  navigate  in  the  said  channels.  The 
circumstance  that  the  cessionary  company  has  invested,  as  it  affirms 
itself,  the  sum  of  $940,000  in  its  vessels  and  preliminary  works,  can 
not  in  any  manner  affect  the  Government  of  Venezuela,  because  the 
company  did  not  enter  into  these  expenses  by  order  of  the  Govern- 
ment, but  because  b}^  its  own  statement  it  deemed  it  advisable  to  do 
so,  and  because  it  was  rendered  necessary  in  order  to  assure  so  far  as 
possible  the  favorable  result  of  its  enterprise.  These  expenses  may 
very  well  have  been  entered  into  by  miscalculation;  and  it  would  be 
wholly  absurd  to  pretend  that  Venezuela  should  be  held  responsible 
for  the  bad  transactions  of  third  parties.  On  the  other  hand,  atten- 
tion is  sufficiently  claimed  by  the  fact  that  that  investment  of  funds 
should  have  taken  place  in  1900  when  the  contract  had  already  existed 
for  six  years,  since  1894;  for  that  is  to  say,  at  least,  that  during  all 
that  previous  time  the  contracting  party  had  not  fulfilled  his  obli- 
gations. 

The  company  also  claims  to  have  complied  exactl}^  with  its  obliga- 
tions, and  this  is  absolutely  false,  because  up  to  date,  as  the  Govern- 
ment of  Venezuela  can  very  well  prove,  the  said  company  has  never 
exactl}'  and  fully  complied  with  its  obligations. 

There  is  also  rejected,  in  the  most  formal  and  conclusive  manner,  the 
item  of  $25,000  which  the  company  claims  to  have  expended  in  efforts 
made  w'ith  the  end  of  obtaining  justice,  because  the  Government  of 
Venezuela  has  never  refused  to  fulfill  its  obligations,  although  it  is 
certain  that  it  should  not  and  could  not  have  accepted  in  any^  manner 
as  laws  for  its  guidance  the  absurd  claims  of  the  company  which  it  has 
alwaj's  sought  to  favor  in  ever}'^  possible  way. 

1  have  also  to  make  an  observation  which  I  esteem  as  very  much  in 
order,  and  this  is,  that  there  should  be  presented  in  original  all  the 
documents  to  which  the  claimant  company  refers,  because  the  printed 
forms  to  which  the  company  has  reduced  them  can  not  be  accepted, 
insomuch  as  Venezuela  has  had  no  part  therein.     These  documents 


REPORT  OF  ROBERT  C.  MORRIS.  219 

should  be  presented  in  original  in  order  to  be  able  to  make  all  objec- 
tions which  their  study  merits,  because  the  printed  forms  which  have 
been  presented  to  the  Commission  can  not  be  equivalent  to  the  docu- 
ments themselves;  and,  once  for  all,  Venezuela  objects  to  those  pub- 
lished forms  and  disavows  the  documents  which  figure  therein  as 
having  emanated  from  her.  Therefore,  if  the  documents  are  presented 
in  original  she  will  investigate  them  and  will  reject  or  accept  those 
which  should  be  rejected  or  accepted. 

If  the  Government  of  the -United  States,  before  having  taken  up 
this  reclamation,  had  taken  into  account  all  and  every  one  of  the 
documents  and  antecedents  of  same,  perhaps  it  would  have  rejected 
the  reclamation  totally,  as  it  declares  to  have  done  in  respect  of  certain 
of  the  items  which  it  contained.  Now,  in  regard  to  what  the  Govern- 
ment of  Venezuela  may  be  owing  to  the  Orinoco  Shipping  and  Trading 
Company,  Limited,  for  passages  and  other  services,  it  is  necessary  in 
the  first  place  to  arrange  between  both  parties  as  to  the  prices  for 
certain  services  which  are  not  stipulated  in  the  tarifi's  agreed  upon; 
for  example,  the  lease  or  charter  of  a  steamer,  because  from  this 
moment  there  is  rejected  the  computation  which  the  claimant  makes 
on  the  basis  of  100  pesos  per  diem,  because  that  is  an  arbitrary  valua- 
tion made  by  him,  without  the  consent  of  the  other  party,  by  and  for 
himself;  and  further  to  determine  what  are  the  services  which  the 
Government  is  obliged  to  pay  for.  When  all  this  shall  have  been 
agreed  upon,  determined,  and  established  it  will  still  remain  to  take 
into  account  what  the  company  owes  to  the  Government  for  divers 
causes,  in  order  to  strike  a  balance  and  to  determine  definitely  which 
is  creditor  and  which  debtor. 

It  is  also  to  be  observed  that  the  item  of  the  claim  relative  to  imposts 
illegally  paid  by  the  company,  as  it  affirms,  which  item  amounts  to 
^19,571.31:,  in  the  same,  that  is  to  say,  in  that  item  there  are  included 
payments  which,  according  to  the  same  company,  correspond  to  the 
years  1898,  1899,  and  1900;  and  according  to  the  transaction  concluded 
between  the  Government  of  Venezuela  and  the  company  this  latter, 
in  virtue  of  that  arrangement,  could  claim  nothing,  absolute!}'  nothing, 
from  Venezuela  for  reasons  prior  to  that  date,  10th  May,  1900,  and 
consequently  in  the  transaction  of  that  date  there  were  included  cer- 
tain of  the  items  which  it  now  claims  newly,  and  therefore  these  items 
should  be  rejected.  Moreover,  it  is  now  timely  to  state  that  Vene- 
zuela solemnly  rejects,  once  for  all,  the  items  of  the  reclamation 
which  belong  to  a  period  prior  to  May  10,  1900,  because  all  those 
which  the  company  had  or  could  have  had  against  Venezuela  were 
covered  by  the  said  transaction. 

It  is  also  a  fitting  time  to  bring  to  the  knowledge  of  the  honorable 
Commission  that  Venezuela  has,  in  accordance  with  her  contracts, 
entered  an  action  against  the  company  for  the  payment  of  losses  and 
damages  arising  from  the  failure  to  comply  with  the  contracts,  and  as 
Venezu<'la  has  a  superabundance  of  pi'oofs,  it  is  probable  that  the  said 
company  will  l)e  found  to  })e  owing  to  Venezuela  much  more  than  that 
which  it  so  unjustly  claims  to-day. 

The  transfers  which  the  Orinoco  Shipping  and  Trading  Company, 
Limited,  may  have  been  able  to  nmke  to  the  Orinoco  Steamship  Com- 
pany, or  to  whatsoever  other  persons,  do  not  affect  Venezuela  in  any 
way,  because  they  have  not  been  made  inaccordance  with  the  contracts 
which  said  company  is  obliged  to  carry  out;  and  also  without  having 


220  REPORT  OF  ROBERT  C.  MORRIS. 

fultillod  the  requirements  of  law.  Moreover,  in  tlie  denied  supposi- 
tion that  those  transfers  should  he  valid,  it  would  eciually  fail  to  affect 
Venezuela,  as  at  the  time  when  the  acts  occurred  Avhich  are  invoked 
as  a  basis  of  the  claim  the  Orinoco  Steamship  C'ompany  did  not  exist 
and  could  not  have  had  any  rights  ))efore  coming-  into  existence.  In 
order  that  it  might  be  protected  to-da>'  by  the  United  States  of  Amer- 
ica it  would  be  necessary,  in  accordance  with  the  stipulations  of  the 
protocol,  that  the  damages,  in  the  event  of  being  a  fact,  should  have 
been  sutlered  by  an  American  citizen,  not  that  thc}^  should  have  been 
suffered  b}^  a  third  partj^  of  different  nationality  and  later  transferred 
to  an  American  citizen.  Such  a  proceeding  is  completely  opposed  to 
equity  and  to  the  spirit  of  the  protocol.  And  it  avails  nothing  that 
the  former  company  should  have  manifested  to  the  (xovernment  of  the 
United  States  that  the  stock  of  the  company  was  held  for  the  most 
part  by  American  citizens,  because  the  personality  of  the  company  and 
that  of  the  stockholders  are  entirel}^  distinct,  and  just  as  the  stock- 
holders can  not  support  themselves  by  the  exceptions  which  may  be 
deduced  from  the  juridical  personality  of  the  compan}^,  so  also  can  the 
latter  not  avail  itself  of  those  which  may  be  deduced  from  the  person- 
alit}^  of  the  stockholders.  Thus,  therefore,  neither  first  nor  last  can 
the  Orinoco  Shipping  and  Trading  Company,  Limited,  be  regarded 
as  an  American  personality,  and  consequentl}^  the  claim  should  be 
rejected. 

A  great  part  of  the  enormous  sum  claimed  arises  from  the  fact 
that  the  company  estimates  at  $82,432.78  the  net  annual  revenue 
which  it  claims  to  have  failed  to  receive  during  the  eight  years 
eight  months  and  three  days  which  remain  for  its  contract  to  expire, 
because  it  says  that  this  contract  was  annulled  in  fact  b}^  the  Execu- 
tive resolution  of  October  5,  1900.  To  this  there  must  be  objected, 
in  the  first  place,  that,  as  has  already  been  shown,  the  said  resolu- 
tion has  not  in  fact  annulled  the  contract,  because  in  same  there 
has  never  been  granted  the  exclusive  privilege  of  navigation  in  the 
Macareo  and  Pedernales  channels,  but  this  was  simply  permitted;  and 
further,  that  the  estimate  is  entirely  arbitrary.  It  also  claims  for  the 
six  j^'ears,  extension  granted  by  the  resolution  of  10th  May,  1900,  at 
the  same  rate  of  $82,1:32.78,  and  in  this  respect,  even  in  the  supposi- 
tion that  the  annual  rate  which  it  establishes  should  be  accepted,  the 
company  lacks  the  right  to  charge  for  those  six  years,  because  the 
Government  granted  that  extension  without  any  corresponding  con- 
cession on  the  part  of  the  company,  and  on  the  contrary,  subjecting  it 
to  conditions  which  the  company  did  not  fulfill,  and  consequently  it 
withdrew  that  concession  on  the  day  when  it  became  convinced  that 
the  company  was  not  fulfilling  the  conditions;  and  to  such  procedure 
it  had  perfect  right,  because  it  was  a  gratuitous  concession  on  its  part 
which  could  in  no  way  bind  it,  and  much  less  when  the  conditions 
which  it  imposed  upon  its  liberalit}^  were  not  complied  with.  There- 
fore the  company  could  in  no  case  claim  for  those  six  years  which 
were  withdrawn  from  it,  because  the  Government  effected  the  with- 
drawal in  the  same  manner  in  which  it  granted  the  concession,  b}'^  and 
of  itself,  on  the  14th  of  December,  1900,  by  Executive  resolution,  in 
which  are  enumerated  the  reasons  which  actuated  it.  Thus,  then,  that 
part  of  the  claim— that  is  to  say,  the  part  relative  to  that  which  the 
compan}^  claims  to  have  failed  to  gain  during  the  years  which  remain 
to  it — is  entirely  irrelevant. 


REPORT  OF  ROBERT  C.  MORRIS.  221 

From  what  has  been  set  forth  there  may  be  deduced: 

(1)  That  the  mere  admission  of  the  claim  of  the  Orinoco  Steamship 
Company,  as  cessionary  of  the  Orinoco  Shipping  and  Trading  Com- 
pany, Limited,  by  virtue  of  a  void  transfer,  which  has  not  been  noti- 
fied to  nor  accepted  by  the  Government  of  A^enezuela,  and  made  in 
express  contravention  of  the  fundamental  contracts,  the  mere  admis- 
sion of  the  claim  to  be  decided  b}^  the  honorable  American-Venezuelan 

•  Mixed  Commission,  that  simple  fact,  is  entirel}-  opposed  to  equity-, 
because  it  treats  of  reclamations  between  two  contracting  parties,  and 
it  would  give  to  a  single  one  of  them  facilities  and  favors  which  are 
denied  the  other,  who  is  deprived  of  its  legitimate  means  of  defense, 
when,  according  to  equit}',  both  contracting  parties  should  be  exactly 
equal  in  their  rights  and  faculties  and  should  have  identical  means  of 
defense. 

(2)  That  if  it  is  on  the  basis  of  his  contracts  that  the  claimant  founds 
his  reclamation,  as,  according  to  equity  and  the  legislation  of  all 
countries,  the  clauses  of  a  contract  concluded  with  all  the  formalities 
of  law  can  not  some  be  valid  and  others  void,  and  as  the  claimant 
grounds  himself  on  certain  clauses  of  those  contracts,  while  in  same 
there  are  others  by  which  he  is  obligated  to  have  recourse  to  the  tri- 
bunals of  Venezuela  for  the  adjustment  of  all  his  differences,  it  is 
equitable,  absolutely  equitable,  that  it  should  not  be  left  to  one  of  the 
parties  openl}"  to  violate  his  agreement;  and  therefore,  as  this  claim- 
ant, on  obtaining  the  transfer  of  said  contracts,  voluntarily  and  deliber- 
ately bound  himself  to  submit  himself  to  the  tribunals  of  Venezuela 
and  never  to  have  recourse  to  diplomatic  means,  he  should  in  equity 
and  in  justice  be  compelled  to  comply  with  the  compact,  and  conse- 
quently that  reclamation  should  be  set  aside,  the  presentation  of  which 
involves  in  itself  the  most  flagrant  violation  of  the  contracts  by  which 
it  assumes  to  be  supported. 

(3)  That  the  $19,200  which  the  company  claims  as  the  balance  of  the 
transaction  of  May  10,  1900,  should  have  set  against  them  the  net 
amounts  which  the  company  owes  to  Venezuela  for  other  matters,  and 
that  so  long  as  the  parties  do  not  concur  in  regard  to  these  accounts, 
and  so  long  as  the  proper  balancing  of  accounts  is  not  effected,  it  is 
impossible  to  determine  which  is  the  creditor  and  which  is  the  debtor. 

(1)  That  the  grounds  which  the  claimant  invokes,  in  saying  that  the 
Government  of  Venezuela,  by  Executive  resolution  of  October  5, 1900, 
in  fact  broke  the  contracts  celebrated  and  diminished  the  rights  of  the 
claimant,  are  absolutely  false  and  inadmissible  grounds,  because  the 
Government  of  Venezuela  has  never  conceded  to  anybody  the  privilege 
of  exclusive  navigation  hy  the  Macareo  and  Pedernales  channels^  but  on 
the  contrary  those  channels  having  been  closed  since  1893,  it  simply 
permitted^  by  the  contract  of  1894,  that  navigation  might  be  effected 
by  those  channels,  which  it  declared  open  to  all  the  world  on  October 
5,  1900.  Therefore  the  company  can  not  have  suffered  in  any  way 
from  that  declaration,  because  its  contracts  do  not  treat  of  the  privi- 
lege of  navigation  by  said  channels,  but  of  the  establishment  of  a  line 
of  steamers  between  Ciudad  Bolivar  and  La  Guaira. 

(5)  That  the  extension  of  six  years  granted  to  the  Orinoco  Shipping 
and  Trading  Company,  Limited,  was  not  conceded  to  this  company  in 
virtue  of  the  concession  which  it  claims  to  have  made  in  reducing  a 
part  of  the  claim  which  in  May,  1900,  it  had  introduced  against  the 
Government  of  Venezuela,  but  was  granted  to  it  without  any  conces- 


222  REPORT  OF  ROBERT  C.  MORRIS. 

sion  on  its  part,  while  imposing'  oertaiii  conditions  the  lack  of  com- 
pliance with  which  would  place  Venezuela  in  a  position  to  suspend  the 
concession,  as  it  did,  and  in  the  same  manner  in  which  it  had  g-ranted 
it,  b}'  Executive  resolution  of  14th  December,  11)01.  Therefore  the 
company  can  claim  absolutely  nothing-  for  the  withdrawal  of  that  con- 
cession, because  it  was  through  its  own  fault  that  it  was  withdrawn; 
and  even  if  it  had  not  so  turned  out,  the  (rovernment  had  the  fullest 
right  to  withdraw  that  concession  Avhich  had  been  an  act  of  liberality 
on  its  part.  Moreover,  even  in  the  event  that  the  extension  of  six 
years  should  be  in  force,  the  Orinoco  Steamship  Company  could  not 
claim  anj-thing  in  that  respect,  because  in  granting  the  concession  to 
the  Orinoco  Shipping'  and  Trading  Company,  Limited,  the  privilege 
to  transfer  same  was  not  accorded  to  it,  and  consequently  it  is  an 
inalienable  concession. 

(6)  That  the  Government  of  Venezuela  can  have  no  responsibility 
of  any  sort  because  the  company  shoidd  have  made  an  investment  of 
$940,000,  because  such  action  took  place  without  the  intervention  of 
any  kind  on  the  part  of  Venezuela,  which  should  not  be  liable  in  any 
case  for  such  an  investment  that  could  have  been  governed  by  more  or 
less  well-grounded  calculations  of  the  company. 

(7)  That  it  is  to  be  noted  that  such  investment  took  place  after  the 
contract  had  been  in  force  for  seven  years,  and  that  this  proves  that 
the  contracts  had  not  been  fulfilled  in  any  manner. 

(8)  That  in  respect  to  the  amount  which  the  claimant  charges  for  pas- 
sages and  other  services,  it  will  be  first  necessary  to  come  to  an  agree- 
ment in  regard  to  the  passages  for  which  the  Government  really  should 
pa}^,  and  afterwards  to  strike  the  balance  that  has  already  been  spo- 
ken of,  at  the  same  time  taking  note  that  the  100  pesos  per  diem  which 
the  claimant  charges  for  the  lease  of  its  vessels  in  the  service  of  the 
Government  is  an  entirely  arbitrary  valuation,  because  that  valuation 
should  be  made  by  mutual  agreement. 

(9)  That  between  the  transaction  of  May  10,  1900,  and  the  Execu- 
tive resolution  of  that  same  date  there  is  no  connection  of  any  kind,  as 
is  pretended  by  the  claimant,  who  alleges  that  the  extension  was 
granted  by  reason  of  the  fact  that  his  claim  having  amounted  on  that 
date  to  1532,996.85,  he  reduced  it  to  200,000  bolivars,  because  it  was 
taken  into  account  that  the  company  ought  to  produce  a  certain 
amount  in  each  year,  and  an  equivalent  was  thereupon  established;  that 
this  agreement  should  figure  in  the  transaction  and  does  not  so  figure, 
and  that  the  connection  of  this  nature  which  the  claimant  alleges  to 
exist  between  both  acts  of  the  Government  can  not  be  deduced  from  a 
simple  coincidence  in  the  date  of  both  documents. 

(10)  That  the  estimate  which  the  claimant  makes  for  the  years  which 
are  lacking  to  the  termination  of  the  contract,  and  for  which  he 
charges  the  Government  a  given  sum  per  annum,  is  entirely  out  of 
order  and  unfounded,  because  the  Government  has  not  failed  in  an}' 
manner  to  fulfill  its  agreements,  and  consequently  is  under  no  obliga- 
tion to  answer  to  the  company  in  the  particular  indicated,  and  that  in 
the  event,  which  is  denied,  that  it  should  so  have  to  answer,  the 
appraisement  of  these  damages  is  not  in  any  manner  the  province  of 
the  interested  part}';  that  the  Government  from  this  time  forth  rejects 
that  estimate  in  itself  as  being  entirely  unfounded,  and  further  because 
the  appraisement  is  arbitrary;  and  in  regard  to  what  is  claimed  in  the 
same  respect  in  relation  to  the  six  years  of  the  extension,  it  rejects  it 


REPOET  OF  ROBEET  C.  MOEEIR.  223 

absolutely,  as  much  because  the  reclamation  is  in  itself  unfounded  and 
out  of  order  for  the  same  reasons  that  are  advanced  relative  to  the 
years  which  are  lacking  for  the  natural  termination  of  the  contract,  as 
because  that  extension  was  in  any  case  withdrawn  b}^  the  Government 
of  Venezuela  in  due  form  and  for  more  than  sufficient  cause. 

(11)  That  the  transfers  which  the  Orinoco  Shipping  and  Trading 
Compan}",  Limited,  claims  to  have  made  to  the  Orinoco  Steamship 
Company  are  completely  void,  and  Venezuela  rejects  them  from  this 
moment  forth  because  the}^  ha\'B  been  made  in  opposition  to  the  agree- 
ments which  the  first  compan}^  accepted  voluntarily  and  deliberately; 
because  due  notification  of  same  was  not  given  and  because  they  lack 
all  the  formalities  which  in  general  similar  acts  require. 

(12)  That  the  documents  should  be  presented  in  original  to  be  able 
to  give  them  the  study  which  they  merit,  because  the  printed  forms 
produced  have  been  made  by  the  interested  party  without  the  control 
and  supervision  of  an}'  author! t}-;  and  that  in  this  respect  Venezuela 
reserves  the  right  to  reject  or  to  admit,  after  an  examination  of  the 
original  documents,  those  which  it  may  consider  to  call  for  such 
action. 

(13)  That  even  if  the  transfer  invoked  were  valid,  as  the  damages, 
in  the  event  of  being  a  fact,  occurred  before  the  company  was  created, 
they  can  not  have  been  suffered  by  an  American  citizen,  and  conse- 
quently the  reclamation  is  not  within  the  terms  established  in  the  pro- 
tocol; and  on  the  other  hand,  neither  can  the  fact  be  invoked  that  99 
per  cent  of  the  capital  stock  was  held  by  American  citizens,  because 
the  juridical  personality  of  the  stockholders  has  no  effect  upon  the 
juridical  personalitj"  of  the  compan}^,  which  has  a  separate  moral 
entity,  nor  vice  versa,  and  therefore  that  circumstance  can  not  be 
invoked,  and  so  much  the  less  in  that  it  is  unverifiable. 

(14)  That  the  item  of  $25,000  for  expenses  in  seeking  justice  is  also 
rejected  absolutely  as  being  unfounded  and  out  of  order,  because 
Venezuela  never  has  refused  to  satisfy  its  obligations,  although  it  is 
indeed  certain  that  it  has  not  accepted,  nor  will  accept,  as  laws  the 
impositions  and  pretentions  of  those  who  have  entered  into  contracts 
with  her. 

(15)  That  in  the  transaction  of  May  10,  1900,  there  were  included 
all  the  claims  which  the  company  might  have  against  Venezuela  for 
any  reason  prior  to  that  date,  and  that  in  the  present  claim  items 
appear,  among  others  that  of  "imposts  and  contributions  illegally 
paid,"  which  are  prior  to  that  date. 

(10)  That  Venezuela  has  also  reclamations  against  the  company,  and 
that  with  this  motive  there  is  pending  before  the  competent  tribunal 
an  action  against  the  company. 

In  synthesis,  the  Government  of  Venezuela  rejects  in  all  and  every  one 
of  its  parts  for  the  reasons  set  forth,  and  for  others  which  it  promises 
to  set  forth  and  substantiate"  at  the  proper  time,  the  claim  of  the 
Orinoco  Steamship  Company,  of  whose  existence  it  came  to  have 
indirect  notice  in  tne  month  of  May  of  this  year,  through  a  published 
report  in  the  Gaceta  Municipal.  And  it  also  wishes  to  brino-  to  the 
knowledge  of  the  honorable  Mixed  Commission  that  the  Orinoco 
Shipping  and  Trading  Company  (Limited)  has  taken  part  in  the  inter- 
nal affairs  of  the  nation,  as  is  proven  by  the  evidence  which  I  pro- 
duce, together  with  sundry  ])ublications,  adding  that  this  company,  up 
to  date,  in  spite  of  having,  received  the  most  decided  and  efficacious 


224  REPOKT  OF  ROBERT  C.  MORRIS. 

protection,  has  never  fullillod  its  obligations  to  the  Government  of 
Venezaela.  On  all  the  o-rounds  alleg-ed  I  respectfully  ask  of  the  hon- 
orable American- Venczuolan  INIixed  Commission  tliat  it  may  be  pleased 
to  set  aside  as  unjust,  illegal,  and  unfounded  the  claim  of  the  Orinoco 
Steamship  Company,  which  presents  itself  as  cessionary  of  the  rights 
and  faculties  of  the  Orinoco  Shipping  and  Trading  Company  (Limited), 
to  which  the  tribunals  of  the  nation  are  open  for  the  allegation  of  its 
rights,  and  to  which  procedure  it  is  obligated  by  the  contracts  on 
which  it  bases  its  reclamations,  which  contracts  it  accepted  and  bound 
itself  to  observe  voluntarilv  and  deliberatcl3\ 
Caracas,  13th  of  July,  li>03. 

(Signed)  Fr.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  the  Orinoco  Steamship  Company,  claim- 
ant, ^No.  19. 

V. 

The  Republic  of  Venezuela. 

replication  on  behalf  of  the  ttnited  states. 

In  addition  to  objections  involving  the  merits  of  this  claim  in 
general  and  specified  items  thereof  in  particular,  the  respondent 
Government  has  suggested  three  several  reasons  why  this  high  Com- 
mission should  not  '' admit"  or  "consider"  the  claim  at  all,  which 
reasons  or  objections  with  change  of  order  in  which  they  appear  in  the 
answer  may  be  stated  as  follows: 

First.  The  damages,  if  any  there  have  been,  were  not  sustained  by 
the  claimant  itself,  but  were  sustained,  if  at  all,  by  the  _  claimant's 
assignor,  The  Orinoco  Shipping  and  Trading  Company  (Limited),  an 
English  corporation.  Therefore,  such  damages  "have  not  been  suf- 
fered by  an  American  citizen,  and  consequently  the  reclamation  is  not 
within  the  terms  established  in  the  protocol."  In  connection  with  this 
objection,  and  as  incidental  to  it,  it  is  also  objected  that  the  fact  that 
99  per  cent  of  the  capital  stock  of  said  English  corporation  was  owned 
at  the  time  the  damages  accrued  by  American  citizens  is  of  no  conse- 
quence "because  the  juridical  personality  of  the  stockholders  has  no 
effect  on  the  juridical  personality  of  the  company,  which  has  a  separate 
moral  entity." 

Second.  Because  all  clauses  of  the  contract  are  "  equally  valid  and 
obligatory,"  and  the  claimant  should  be  required  to  conform  to  that 
provision  of  the  contract  which  relegates  all  disputes  arising  between 
the  parties  to  the  Venezuelan  courts,  without  recourse  to  diplomatic 
intervention. 

Third.  As  the  Venezuelan  Government  has  claims  of  good  origin 
against  the  company  which  she  ' '  can  not  substantiate  before  the  Com- 
mission, which  is  without  jurisdiction  to  determine  them,"  and  there- 
fore she  can  not  defend  herself  as  she  could  before  a  court  of  law, 
*  *  *  to  hear  and  determine  the  claim  of  the  company  under  such 
circumstances  would  be  "in  open  opposition  to  the  most  simple  prin- 


KEPOET  OF  ROBERT  C.  MORRIS.  225 

ciples  of  equity;"  and  therefore  the  '■'"Commission,  proceeding-  in 
accordance  with  its  fundamental  rule,  which  is  (that  of  the)  strictest 
equity,  should  reject  this  claim." 

These  three  objections  are,  so  to  speak,  fundamental  in  character 
and  general  in  scope.  If  either  one  of  them  be  in  law  and  truth  well 
founded,  the  claim  should  be  dismissed. 

Objections  first  and  second  attack  the  jurisdiction  of  this  Conmiis- 
sion  to  hear  and  determine  the  merits  of  the  claim  at  all.  Objection 
number  three,  while  seemingly-admitting  the  existence  of  jurisdiction 
in  the  Commission  to  hear  and  determine  the  claim  as  presented  b}'  the 
United  States,  demands  that  it  be  dismissed  because  under  the  terms  of 
the  protocol  the  Commission  is  without  jurisdiction  to  hear  and  deter- 
mine by  way  of  offset  or  counterclaim  certain  unliquidated  and  unascer- 
tained claims  for  damages  on  the  part  of  the  Government  against  the 
claimant  and  its  assignor.  Such  claims  appear  never  to  have  been 
thought  of,  and  certainly  not  to  have  been  asserted  in  writing  or  other 
form  calculated  to  lend  them  permanency,  until  after  the  presentation 
of  this  case  to  this  Commission. 

We  are  confronted  at  the  ver}^  threshold  of  the  discussion,  then,  with 
the  question  of  the  jurisdiction  of  the  Conuuission  in  the  premises  and 
it  seems  well  in  the  discussion  of  it  to  follow  the  question  as  outlined 
in  the  first  and  second  objections  above. 

JURISDICTION. 

Article  1  of  the  protocol  under  which  this  tribunal  has  been  organ- 
ized and  is  acting  provides  that — 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic  of 
Venezuela  *  *  *  which  shall  have  been  presented  to  the  Commission  *  *  *  by 
the  Department  of  State  of  the  United  States  or  its  legation  at  Caracas  shall  be  exam- 
ined and  decided  by  a  (the)  mixed  commission,  which  shall  sit  at  Caracas.     *    *    * 

Before  assuming  the  functions  of  their  office,  the  commissions  and  the  umpire  shall 
take  solemn  oath  carefnlly  to  examine  and  impartially  to  decide  according  to  justice 
and  the  pr(>\\i^\onsoi  this  conventionall  cl(nnissi(l))nitled  to  them.  *  *  *  The  com- 
missions, fir  in  case  of  their  disagreement,  the  umpire,  shall  decide  all  claims  upon  a 
basis  of  absolute  equity  without  regard  to  objections  of  a  technical  nature  or  of  the 
l)ro visions  of  local  legislation. 

From  the  express  words  of  the  protocol,  therefore,  it  appears  that 
with  respect  to  the  jurisdictional  power  of  this  high  Commission  to 
hear  and  determine  claims  against  the  Republic  of  Venezuela,  but  two 
conditions  are  prescribed  as  prerequisiues: 

First.  That  the  claim  shall  l»e  owned  (poseidas)  by  citizens  of  the  United  States  of 
America;  and 

Second.  That  the  claim  shall  have  been  presented  to  the  Commission  by  the  Depart- 
ment of  State  of  the  United  States  or  its  legation  at  Caracas. 

Every  claim  so  owned  and  presented  the  commissioners  are,  or  in  case 
of  their  disagreement  the  umpire  is  (article  2  of  protocol),  in  duty 
bound  carefully  to  exandne  and  impai-tially  to  decide. 

If,  upon  examination  of  any  claim  so  presented  to  the  Commis.sion, 
and  every  claim  presented  by  the  agent  of  the  United  States  must  be 
conclusively  presumed  to  have  been  presented  "by  the  Department  of 
State  of  the  United  States  or  its  legation  at  Caracas,"  it  shall  appear 
that  the  claim  is  owned  (poseidas)  l)y  a  citizen  of  the  United  States,  it 
would  seem  beyond  dispute  that  the  Commission  was  possessed  of  full 

S.  Doc.  317,  58-2 15 


22G  REPORT    OF    KOliKKT    ('.    MORRIS. 

juii,sclicli()ii  to  litnir  (ho  clunn,  consider  Iho  proofs,  mid  adjudo-e  the 
controvorsy. 

Tho  sio-iiiticanco  of  the  Mord  •'owned''  is  too  well  understood  to 
render  (luotations  of  its  deliuitions  worth  while,  but  no  detinition  of  it 
could  he  more  apt  than  the  primary  detinition  o-iven  in  Neuvo  Diccio- 
nario  de  la  Ler.giui  C'astellana  of  its  treaty  equivalent  jxMeulds  (poscer), 
viz:  2\')ur  inuf  co.sa  o)  sk  poder — i.  e.,  Otrned^  to  hold  in  possession — no 
matter  how  acciuircd. 

But  it  is  sai(l  that  these  words  of  possession  nuist  l)e  construed  in 
accord  with  established  principl(\s  of  general  international  law,  and  as 
the  _o"eneral  ride  is  that  international  claims  must  be  national  in  origin 
as  well  as  at  the  time  of  submission,  the  special  words  of  possession 
used  in  this  treat}'  must  be  hold  to  include  only  such  claims  as  were 
American  in  origin  and  not  to  include  claims  which,  though  not  Amer- 
ican in  origin,  have  since  in  due  course  of  business  come  by  assign- 
ment or  otherwise  into  the  possession  of  American  citizens. 

This  suggestion  ignores  ontireh'  the  fact  that  high  contracting  par- 
tics,  sovereign  in  name  and  power,  are  possessed  of  the  fullest  liberty 
of  contract,  and  that  it  is  entirely  competent  for  such  parties  by 
express  agreement  to  M'aive  or  overrule  as  between  themselves  any  or 
all  general  principles  or  technical  rules  of  lav,\ 

There  is  no  general  prohibition  of  law,  international  or  nmnicipal, 
against  the  assignment  of  claims  such  as  have,  for  instance,  been  sub- 
mitted to  this  august  tribunal  for  adjudication. 

This  subject  was  much  discussed  in  Camy's'case  before  the  United 
States  and  French  Mixed  Commission  under  the  convention  of  January 
1(3,  1880.  In  that  case  it  appeared  from  the  memorial  itself  that  the 
claimantCamy,  a  French  subject,  had  assigned  his  interest  in  the  claim  to 
an  American  citizen,  but  for  reasons  best  known  to  himself  he  asserted 
that  the  assignment  was  void,  and  that  he  was  therefore  entitled  to 
urge  the  claim  in  his  own  behalf  before  the  commission.  The  agent 
for  the  United  States  contended  that  the  assignment  was  valid,  and 
demurred  to  the  claim.  The  demurrer  was  sustained,  the  commis- 
sioners in  disposing  of  the  matter  sajnng: 

The  convention  under  Avhich  we  act  is  silent  upon  the  question  whether  the  origi- 
nal claimant  may  or  may  not  assign  his  claim  to  another.  The  commissions  hereto- 
fore established  l)y  treaty  between  the  United  States  and  other  powers  for  the 
settlement  of  such  claims  "have  recognized  the  right  of  the  original  claimant  to  trans- 
fer his  claim  to  another.  The  rules  of  the  British  and  American,  the  Mexii'an  and 
the  Spanish  commissions  recognize  the  right  and  require  the  transfer  to  be  set  forth 
in  the  memorial.  The  rules  of  this  Commission  also  recognize  the  right.  Several 
cases  of  awards  to  assignees  may  be  found  among  the  decisions  of  the  British  and 
American  Claims  Commission.  We  think  the  claim  existed  and  vested  in  the  claim- 
ant a  right  to  relief  and  compensation  when  the  acts  of  taking  the  cotton  and  con- 
verting it  to  the  use  of  the  United  States  were  committed.  True,  there  was  no  court 
or  tribunal  to  which  the  claimant  could  present  Ids  claim  and  obtain  jiidgment  and 
compensation,  but  his  moral  light  existed,  and  the  establishment  of  this  tribunal  recog- 
nized it  and  gave  him  a  legal  remedy  for  his  right  because  no  other  existed.  *  *  * 
(3  Moore,  Int.  Arb.,  pp.  2398-2400.) 

Conceding  then  the  general  rule  with  respect  to  national  claims  to 
be  as  contended  for  by  the  honorable  agent  for  Venezuela,  viz,  that 
the.y  must  be  national  in  origin  as  well  as  national  at  the  time  of  sub- 
mission to  the  arbitral  tribunal,  this  rule,  as  was  said  in  the  case  of 
Al)biatti  against  Venezuela  (3  Moore,  Int.  Arb.,  p.  2347),  is  "subject  of 
course  to  treaty  terms." 


REPORT  OF  ROBERT  C.  MORRIS.  227 

111  that  cii.se  the  commissioners  agreed  that  in  the  absence  of  treat}" 
terms  to  the  contrar}"  the  touchstone  of  jurisdiction  was  whether  the 
State  seeking-  redress  was  the  State  that  had  been  injured  by  a  wrong 
done  to  one  who  at  the  time  of  the  doing  thereof  was  its  own  citizen. 

A  striking  example  of  an  exception  from  the  general  principle  is 
found  in  the  repeated  rulings  of  the  so-called  Court  of  Alabama  Claims, 
which  was  organized  pursuant  to  the  act  of  June  28,  1874  (United 
States  of  America),  for  the  distribution  of  the  so-called  Geneva  award. 

The  treaty  upon  which  said  fiward  was  founded  recites  that — 

Art.  1.  Whereas  differences  have  arisen  between  the  Government  of  the  United 
States  and  the  Government  of  Her  Britannic  IMajesty,  and  still  exist,  growing  out  of 
the  acts  committed  by  the  several  vessels  which  have  given  rise  to  the  claims  generic- 
ally  known  as  the  Alabama  claims;     *    *    * 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the  part  of  the 
United  States,  and  to  provide  for  the  speedy  settlement  of  such  claims  which 
are  not  admitted  by  Her  Britannic  Majesty's  Government,  the  high  contracting 
parties  agree  that  all  the  said  claims  *  *  *  shall  be  referred  to  a  tribunal  of 
arbitration.     *    *    * 

Art.  7.  *  *  *  In  case  the  tribunal  find  that  Great  Britain  has  failed  to  fulfill 
any  duty  or  (hities  as  aforesaid,  it  may,  if  it  think  proper,  proceed  to  award  a  sum  in 
gross  to  be  jiaid  bv  Great  Britain  to  the  United  States  for  all  the  claims  referred  to 
it.     *    *    *  " 

Art.  10.  Provided  that  in  case  the  tribunal  found  Great  Britain  tcT  be  in  fault 
but  did  "not  award  a  sum  in  gross,"  a  board  of  assessors  should  be  appointed  to 
ascertain  and  determine  "what  claims  are  valid,  and  what  amount  or  amounts  shall 
be  paid  by  Great  Britain  to  the  I'nited  States  on  account  of  the  liability  arising  from 
such  failure;"  and  alsothatthe  members  of  said  board  "should  impartially  and  care- 
fully examine  and  decide,  to  the  best  of  their  judgment,  and  according  to  justice  and 
e(}uity,  all  matters  submitted  to  them,  and  phall  forthwith  proceed  *  *  *  to  the 
investigation  of  the  claims  Avhich  shall  be  presented  to  them  bv  the  Government  of 
the  United  States." 

The  arbitrators  having  carefully  examined  the  evidence  and  docu- 
ments submitted  by  the  respective*  parties  for  their  consideration, 
"juaking  use  of  the  authority  conferred  upon  it  (them)  b}' Article 
VII  of  the  said  treaty,  awarded  to  the  United  States  a  sum  of 
$15,500,000  in  gold,  as  the  indemnity  to  be  paid  by  Great  Britain  to 
the  United  States,  ^/y>r  the  satisfaction  of  all  of  the  clairus  refei'red  to 
the  consideration  of  the  trihvjial.''''     (1  Moore,  Int.  Arb.  pp.  658-659). 

It  thus  appears  that  the  award  was  made  in  full  settlement  of  all 
the  "claims  on  the  part  of  the  United  States"  referred,  under  the 
stipulations  of  the  treat}- ,  to  tlie  consideration  of  the  arbitrators. 

The  amount  so  awarded  in  gross  having  come  into  the  possession  of 
the  United  States,  the  act  of  flune  23,  1874  (above  referred  to),  provid- 
ing for  the  creation  of  a  court  to  distribute  the  same,  was  enacted. 

Section  12  of  said  act  provided: 

And  no  claim  shall  be  admissible  or  allowed  by  said  court,  arising  in  favor  of  any 
person  not  entitled,  at  the  time  of  his  loss,  to  the  protection  of  the  United  States  in 
the  premises. 

But,  notwithstanding  the  contention  of  the  representatives  of  the 
United  States  to  i\\v  contrary,  the  court  held  that  the  act  rendered 
admissible  the  claims  of  all  persons,  native  born  or  naturalized,  and 
even  unnaturalized,  who  were  at  the  time  of  their  loss  or  injury 
entitled,  in  respect  of  such  loss  or  injury,  to  the  protection  of  the  Hag 
of  the  United  States  on  the  high  seas,  excepting  only  British  subjects, 
who  were  held  to  be  excluded  on  the  ground  that  they  could  not  be 
entitled  to  the  protection  or  intervention  of  the  United  States  as 
against  their  own  Government. 


228  Kp:P(nrr  ok  Robert  r.  morris. 

The  1o;hm(hI  judge,  who  prepared  the  h>udint;-  opinion  on  the  point, 
among  othi>r  conehisions,  dechirod  that — 

It  was  a  jireat  i)riiK'ii)lo  for  which  our  Governinent  had  contendcil  from  its  origin, 
a  i>riiu"iple  idontilied  with  the  freedom  of  the  seas,  viz,  that  tlie  Hag  i)roteeted  the 
ship  and  crcn/ />er.so(t  and  </)y»r/ thereon  not  contraband.  *  *  *  Therefore,  on  the 
ground  of  abstract  justice  and  propriety,  and  ui)on  1lie  ground  of  legal  riglit,  we 
decide  that  foreigners  entitled  to  the  protection  of  our  flag  in  the  i)remises,  whether 
naturalized  or  not,  have  a  i-ight  to  share  in  the  distribution  of  this  fund. 

The  court  passed  upon  a  large  numl)erof  claims  in  which  the  claim- 
ants were  persons  of  foreign  birth,  not  naturalized,  and  entered  judg- 
ment in  their  favor  whenever  they  showed  a  loss  under  the  provisions 
of  the  act,  except  in  the  cases  of  native-born  subjects  of  Great  Britain. 
(3  Moore,  Int.  Arb.,  pp.  2350-2354.) 

It  is  to  be  noted  that  these  claims  of  aliens,  which  were  allowed  by 
that  court,  were  the  very  claims  which  the  United  States  submitted  to 
and  urged  before  the  arbitrators  appointed  by  and  acting  under  the 
terms  of  the  treaty  between  the  United  States  and  Great  Britain,  and 
were,  in  part,  ''tlio  claims  on  the  part  of  the  United  States"  which  the 
gross  award  of  fH5, 500,000  was  intended  to  satisf3^ 

The  case  of  the  Texan  Star  is  also  instructive  in  this  connection. 
The  vessel  was  built  in  Boston,  and  in  1863  her  managing-  owners  were 
Stevens  &  Co.,  American  citizens,  who,  on  the  breaking  out  of  the 
war  of  the  rebellion,  transferred  her  to  a  British  subject  so  as  to  pre- 
vent her  capture  by  Confederate  cruisers.  On  the  transfer  her  name 
was  changed  to  iho,  Montahan .,  but  she  was  left  by  her  nominal  vendees 
in  the  absolute  charge  and  control  of  her  former  master.  Having  set 
out  on  her  voyage  she  was  captured,  and,  with  her  cargo,  burned  by 
the  Confederate  cruiser  Alahama. 

The  counsel  for  the  United  States  contended  that  the  vessel  having 
been  sold  to  a  British  subject  and  put  under  the  British  flag,  said  ves- 
sel was  British  property,  and,  therefore,  not  being  entitled  to  the  pro- 
tection of  the  United  States  in  ^/i^yj/w^/.sc.s,  the  claimants  could  riot 
recover;  but,  after  an  elaborate  review  of  precedents  and  authorities, 
it  was  held  by  the  court  that,  notwithstanding  the  Texan  Sta?'  was 
sailing  under  the  English  flag  at  the  time  of  her  capture  and  destruc- 
tion, nevertheless,  the  American  claimants — whether  continuing  to  be 
the  absolute  owners  of  the  ship  in  consequence  of  the  invalidity  of  the 
fictitious  sale,  or  w^hether  as  mortgagees  in  possession  with  unlimited 
authority,  whether  with  or  without  any  registration — owned  property 
in  the  Texati  Star  {2[ontafjan)-^  that  that  property,  notwithstanding 
the  change  of  flag,  was  under  the  protection  of  the  United  States;  that 
the  property  was  lost  from  damage  directly  resulting  from  the  act 
of  the  Confederate  cruiser,  and  that,  therefore,  the  claimants  came 
within  the  provisions  of  the  act  providing  for  the  distribution  of  the 
Geneva  award.     (3  Moore,  Int.  Arb.,  pp.  2360,  2379.) 

It  is  very  plain  from  this  opinion  that  the  couj't  in  determining  its 
jurisdiction  looked  through  the  bill  of  sale  and  change  of  flag,  and, 
seeing  that,  notwithstanding  the  apparent  English  ownership,  the  real 
ownership  was  American,  and  that  America  and  American  citizens  had 
suffered  the  damage  and  wrong  complained  of,  swept  aside  all  technical 
difficulties  that  stood  in  the  path  of  justice  and  awarded  compensation 
where  damage  had  been  done. 

The  reason  for  the  conceded  rule  that,  in  the  absence  of  special 
l)rovision  to  the  contrar}'  in  the  treaty  or  articles  of  convention,  the 


REPORT  OF  ROBERT  C.  MORRIS.  229 

claim  to  merit  consideration  at  the  hands  of  an  international  commis- 
sion must  be  national  in  origin,  as  well  as  at  the  time  of  its  presenta- 
tion to  the  Commission  for  adjudication,  lies  in  that  principle  of  public 
policy  which  forbids  speculation  in  national  claims  and  prevents  the 
drummmg"  up  and  purchase  by  citizens  of  a  powerful  state  of  claims 
against  a  foreign  nation  which  have  accrued  to  citizens  of  an  unpotent 
state. 

But,  the  reason  for  the  rule  being  absent,  the  rule  itself  falls,  and, 
even  in  the  absence  of  a  treat}-  stipulation  to  that  efl'ect,  there  would 
seem  to  be  no  room  for  its  application  in  a  case  such  as  here  at  bar 
where  the  element  of  speculation  is  entirely  wanting-  and  the  beneficial 
ownership  of  the  claim  at  the  time  of  origin  and  ever  since  has  remained 
the  same,  for  although  the  Orinoco  Shipping  and  Trading"  Compan}', 
Limited,  was  a  British  corporation  and  the  Orinoco  Steamship  Com- 
pany is  an  American  corporation,  the  owners  of  tlie  respective  compa- 
nies, that  is,  the  stockholders,  were,  with  unimportant  exceptions,  the 
same  in  each.  (Sworn  Memorial,  p.  -1.)  The  beneficial  interest  in  the 
company  having*  been  at  all  times  American,  any  injury  done  the  com- 
pany or  its  properties  was  a  direct  injury  to  American  citizens  and 
consequently  a  wrong  to  the  United  States,  which  it  was  the  purpose 
of  the  protocol  and  the  parties  to  it  to  have  righted. 

The  fact  that  at  the  date  of  the  main  wrongs  complained  of,  the 
predecessor  in  interest  of  the  present  claimant  was  an  English  regis- 
tered company  is  of  no  great  moment,  for  there  is  respectable  prece- 
cent  for  national  intervention  in  behalf  of  national  stockholders  in  a 
foreign  corporation  and  of  shareholders  in  a  ship  sailing  under  a 
foreign  register  and  flag. 

The  Delagoa  Bay  Railway  arbitration  between  the  United  States 
and  Portugal  is  directl}^  in  point.     (2  Moore  Int.  Arb.,  1865  et  seq.) 

The  facts  of  that  case  were  as  follows: 

In  1883  Edward  McMurdo  obtained  a  concession  from  the  Portu- 
guese Government  to  construct  and  operate  a  railroad  from  Lourenfo 
Marquez  to  the  frontier  of  the  Transvaal.  It  was  stipulated  in  the 
concession  that  he  should  form  a  company  for  this  purpose  under  the 
laws  of  Portugal,  and  such  company,  called  the  "Lourenco  Marcpiez 
and  Transvaal  Railway  Compau}^,""  was  organized  in  accordance  there- 
with. In  Ma}',  1884,  Colonel  McMurdo  assigned  his  concession  to  the 
Lourenc;o  Marquez  and  Transvaal  Railway  Company,  and  received  as 
consideration  therefor  498,910  out  of  500,000  shai-es  of  the  stock  of 
the  said  Portuguese  company.  By  the  same  instrument  Colonel 
McMurdo  agreed  to  construct  the  railroad,  in  consideration  of  the 
transfer  to  him  of  the  whole  of  the  debenture  bonds  of  the  company, 
amounting  to  £'125,000. 

For  several  years  McMurdo  was  unsuccessful  in  his  efi'orts  to  float 
these  bonds.  Finally,  in  iS8T,  he  obtained  the  assistance  of  English 
capitalists,  who,  however,  stipulated  that  their  interests  should  be 
represented  by  the  bonds  and  shares  of  a  company  to  be  incorporated 
under  English  laws.  In  this  way  the  Delagoa  Bay  and  East  African 
Railway  was  formed,  with  a  capital  of  £500,000  in  shares.  McMurdo 
then  assigned  to  this  English  company  his  shares  in  and  bonds  of  the 
Portuguese  company  and  the  benefit  of  his  contract  with  said  Portu- 
guese company  of  May,  1881,  the  English  company  undertaking  to 
mdemnify  him  in  respect  to  the  ol)ligations  of  his  contract  to  pay  him 
£115,500  and  to  give  him  tiicir  entire  issue  of  stock.     The  company 


230  REPORT  OF  ROHKRT  C.  MORRIS. 

then  issued  debenture  bonds  to  pay  MeiSIurdo  and  raise  money  to  l)uild 
the  road. 

In  July,  liSST,  the  Portuo'uese  (Jovernnient  intimated  tiuit  it  would 
reijuircan  extension  of  tlie  line  of  the  railway.  Meantinu*  the  I'aihvay 
was  completed  in  accordance  with  the  orig-inal  plans  and  accepted  by 
tiie  Portuguese  (lovermnent,  with  a  reservation  of  the  question  as  to 
the  further  extension  of  the  line.  Controversies  over  this  extensioii 
lead  to  the  coniiscation  of  the  road  in  June,  ISSl),  ])y  I'ortuoal. 

The  lirst  step  of  the  United  States  toward  intervention  was  taken 
May  9,  1889,  when  Mr.  Blaine  instructed  Minister  Lewis,  at  Lisbon, 
to  send  the  Department  all  the  documents  relating  to  the  McMurdo 
concession.  On  June  19,  Mr.  Blaine  further  instructed  Mr.  Lewis 
that  it  was  reported  that  the  Portuguese  Government  intended  to  take 
possession  of  the  railway  on  the  12-tth  of  June,  and  he  expressed  the 
hope  that  no  decisive  action  might  be  taken  until  the  Government  of 
the  United  States  could  investigate  the  case  and  make  known  any 
objections  it  might  desire  to  express.  At  the  same  time  he  reserved 
all  the  rights  of  the  United  States  in  the  matter.  When  it  was  reported 
that  the  concession  had  been  canceled,  Mr.  Lewis  was  instructed  to 
make  a  formal  protest,  reserving  all  rights  the  heirs  of  McMurdo,  who 
had  died  meanw^hile,  or  other  American  citizens  might  have  in  the  con- 
cessions; and  on  October  12, 1889,  Mr.  Loring,  who  had  succeeded  Mr. 
Lewis  as  our  minister  at  Lisbon,  was  directed  to  "  inform  Portuguese 
minister  for  foreign  affairs  that  this  Government,  after  careful  investi- 
gation, vieW'S  the  forfeiture  of  Delagoa  Railway  concession  and  con- 
fiscation of  the  property  of  American  citizens  as  unwarrantable  and 
unjust,  and  that  it  will  demand  and  expect  the  restoration  of  property 
or  indemnity  for  losing,  inflicted  by  Portuguese  Government  at  the 
time  of  threatened  forfeiture." 

On  November  8,  1889,  in  the  course  of  a  long  instruction  to  Mr. 
Loring,  reviewing  the  facts  in  the  case,  Secretary  Blaine  says: 

Upon  full  consideration  of  the  circumstances  of  the  case,  this  Government  is  forced 
to  the  conclusion  that  the  violent  seizure  of  the  railway  Ly  the  Portuguese  Govern- 
ment was  an  act  of  confiscation  which  renders  it  the  duty  of  the  Government  of  the 
United  States  to  ask  that  compensation  should  l)e  made  to  such  citizens  of  this 
country  as  may  be  involved.  *  *  *  The  Portuguese  company  being  without 
remedy  and  having  now  practically  ceased  to  exist,  the  only  recourse  of  those  whose 
property  has  been  confiscated  is  the  intervention  of  their  respective  Governments. 

Independently  of  this  action  on  the  part  of  the  United  States,  which 
it  is  to  be  noted  was  taken  on  behalf  of  an  American  stockholder 
in  a  Portuguese  company,  the  British  Government  had  also  intervened 
on  behalf  of  its  citizens  who  were  bondholders  in  the  English  corpo- 
ration, the  Delagoa  Bay  and  East  African  Railway,  the  sole  connec- 
tion of  the  latter  company  with  the  controversy  being  as  above  stated, 
viz,  that  by  transfer  from  McMurdo  it  had  become  the  assignee  or 
holding  company  of  the  shares  in  and  bonds  of  the  Portuguese  com- 
pany given  to  McMurdo  in  consideration  of  the  construction  of  the 
railway. 

On  September  10,  1889,  Lord  Salisbury  instructed  Mr.  Petre  (the 
English  representative  in  Portugal)  that — 

Her  Majesty's  Government  are  of  opinion  that  the  Portuguese  Government  had 
no  right  to  cancel  the  concession  nor  to  forfeit  th(!  line  already  constructed.  They 
hold  the  action  of  the  Portuguese  Government  to  have  been  wrongful  and  to  have 
violated  the  clear  rights  and  injured  the  interests  of  the  British  company  which 
was  powerless  to  prevent  it,  and  which,  as  the  I'ortuguese  company  is  practically 
defunct  (this  suggestion  was  vigorously  denied  by  Senhor  Barros  Gomes,  Portuguese 


EEPOKT  OF  ROBERT  C.  MORRIS.  231 

minister  of  foreign  affairs),  has  no  remedy  except  through  the  intervention  of  its  own 
(lovernment.  In  their  judgment  the  British  investors  have  suffered  a  grievous 
wrong  in  consequeni'e  of  the  forcil)le  confiscation  by  the  Portuguese  Government  of 
the  line  and  the  materials  l^elonging  to  the  British  company  and  of  the  security  on 
which  the  debentures  of  the  British  company  had  been  advanced;  and  that  for  that 
wrong  Her  JNIajesty's  Government  are  bound  to  ask  for  compensation  from  the  Gov- 
ernment of  Portugal. 

We  thus  have  the  case  of  both  the  United  States  and  Great  Britain 
asserting  the  propriet}^  and  exercising  the  right  to  intervene  as  against 
Portugal  on  behalf  of  their  respective  nationals,  stockholders  or  bond- 
holders in  a  Portuguese  corporation.  An  agreement  to  arbitrate  hav- 
ing been  reached,  the  arbitrators  were  named  by  the  President  of  the 
Swiss  Republic,  and  after  an  exhaustive  review  of  the  matters  con- 
nected with  the  claim  recently  rendered  an  award  in  favor  of  the 
claimants  for  a  large  sum. 

An  even  more  striking  instance  of  national  intervention  on  behalf  of 
a  national  stockholder  in  a  foreign  corporation  is  to  be  found  in  the 
case  of  the  claim  of  the  Salvador  Conniiercial  Compan}-,  an  American 
corporation,  and  other  citizens  of  the  United  States,  all  being  stock- 
holders in  the  "El  Triunfo  Company  (Limited),"  a  San  Salvadorean 
corporation.  This  controversy  had, its  origin  in  a  scheme  to  establish 
and  develop  a  new  port  on  the  Pacific  coast  of  Central  America  in  the 
Republic  of  Salvador. 

In  that  case  a  concession  for  the  navigation  of  the  port  in  question 
had  been  granted  to  the  Salvadorean  corporation,  51  per  cent  of  the 
stock  of  which  was  owned  by  the  American  corporation  first  above 
named.  The  concession  having  been  arbitrarily  withdrawn  Ijy  the 
Salvadorean  Government,  the  American  citizens  interested  appealed 
to  their  Government  for  protection  and  reclamation.  The  Govern- 
ment of  San  Salvador  denied  the  right  of  the  Government  of  the  United 
States  to  intervene  in  the  matter,  insisting  that  the  Government  could 
only  deal  with  the  claims  of  the  San  Salvador  corporation  which,  as  a 
citizen  of  that  country,  should  seek  its  redress,  if  any  it  had,  in  the  San 
Salvador  courts.  After  prolonged  diplomatic  negotiations  the  entire 
matter  was  su))mitted  to  arbitration. 

Before  the  arintrators  it  was  again  asserted  that  the  United  States 
could  not  in  tliat  case  make  reclamations  for  its  nationals,  the  share- 
holders in  El  Triunfo  Company,  for  the  I'eason  that  such  citizens  hav- 
ing invested  their  mon<>y  in  the  Republic  of  San  Salvador  must  abide 
by  the  laws  of  that  country  and  seek  their  remedy,  if  any  the}-^  have, 
in  its  courts,  and  that  before  reclamations  can  be  successfully  urged 
in  their  behalf  by  the  Ignited  States  it  must  be  shown  that  such  courts 
having  been  appealed  to  a  denial  of  justice  had  resulted.  While  not 
denying  the  general  pro]Josition  of  law  as  thus  stated,  the  commission 
(the  umpire,  Sir  Henry  Strong,  and  the  American  commission  concur- 
ring) sustained  the  right  of  the  United  States  to  intervene  under  the 
circumstances  on  l)ehalf  of  its  nationals,  mere  stockholders  though  they 
were,  and  rendered  an  award  in  claimant's  favor  for  a  large  sum.  (A 
full  copy  of  the  decision  of  the  commissioners  in  tiiat  case  is  sub- 
mitted herewith;  see  also  extract  and  remarks  in  relation  thereto  con- 
tained in  brief  on  behalf  of  the  United  States  heretofore  filed  herein.) 

It  thus  appears  that,  even  had  there  not  been  any  transfer  of  rights 
from  the  English  cor[)oration,  the  Orinoco  Shipping  and  Trading 
CJompany  (Limited),  to  the  A mei'ican  corporation,  the  Orinoco  Steam- 
ship Company,   it  would  still   have   been  entirely  competent  and  in 


232  REPORT  OF  ROBERT  0.  MORRIS. 

accord  -vvith  o>stablishod  proccdents  iov  the  United  States  to  have  inter- 
vened as  against  Venezuela  and  to  have  demanded  on  behalf  of  its 
nationals,  althouiih  stoekholders  in  an  Enojish  company,  compensa- 
tion for  losses  and  damages  suffered  by  sucli  nationals  as  the  result  of 
arbitrary  interference  with  the  company's  business  or  its  property  by 
A  enezuida. 

A  foundation  for  such  action  was  in  fact  laid  ]>y  the  American 
diplomatic  repi'esentative  in  Caracas,  Avhen,  in  conjunction  with  the 
English  minister,  he  called  upon  the  Venezuelan  minister  of  foreign 
aiiairs,  and,  showing  him  the  company's  protest  against  the  decree 
of  October  5,  1900,  opening  the  Macareo  and  Pedernales  channels  to 
free  navigation,  asked  for  a  modification  of  it  "in  some  way,  as  the 
carrying  out  of  it  would  ccrtaiidy  very  greatly  injure  the  interests  of 
company  in  question."     (Dip.  Cor.,  pp.  9-10.) 

Another  view  of  this  subject  is  also  interesting.  There  is  in  session 
at  the  present  time  in  this  capital  in  addition  to  the  United  States  and 
Venezuelan  Mixed  Commission  also  a  British  and  Venezuelan  Mixed 
Commission.  The  former  has  jurisdiction  of. all  claims  owned  by 
American  citizens  which  shall  have  been  presented  to  it  for  decision 
by  the  United  States  Department  of  State,  l^he  latter  has  jurisdiction 
of  all  British  claims  not  othei'wise  settled  that  may  be  brought  before 
it.  As  in  any  view  one  or  the  other  of  these  commissions  would  have 
had  jurisdiction  to  hear  and  determine  such  portion  of  this  claim  as 
accrued  to  the  English  company,  it  would  seem  to  be  a  matter  of  small 
concern  which  one  was  called  upon  to  decide  it. 

If  it  be  true  that  Venezuela  has  arbitrarily  destroyed  property  rights 
of  the  Orinoco  Shipping  and  Trading  Company  (Limited)  and  thereby 
inflicted  injuries  upon  that  company,  which,  as  necessarily  follows, 
must  ultimately  fall  upon  its  stockholders,  who  were  American  citi- 
zens, it  would  seem  that  the  wrong-  that  was  done  was  always  a  wrong 
against  the  United  States  and  its  citizens. 

The  basis  of  intervention  having  been  established,  it  is  of  small  con- 
sequence either  in  principle  or  practice  whether  such  intervention 
takes  place  on  behalf  of  the  individual  stockholders  who  had  been 
wronged  or  on  behalf  of  a  corporation  to  whom  their  rights  whatever 
they  were  had  been  transferred. 

On  October  21,  1899,  the  Orinoco  Shipping  and  Trading  Company 
(Limited)  invoked  "the  aid  and  protection  of  the  American  Govern- 
ment for  the  interests  of  American  citizens  involved  therein  "  (Dip. 
Cor.,  p.  1),  representing  that  99  per  cent  of  its  capital  stock  was 
owned  b}^  Alfred  B.  Scott,  J.  Van  Vechten  Olcott,  and  11.  Morgan 
Olcott,  three  American  citizens.  That  this  application  for  protection 
met  with  a  prompt  response  and  produced  satisfactor}'  results  appears 
from  the  letter  to  the  Secretary  of  State  of  the  United  States  under 
date  of  June  19,  1900,  forwarding  copies  of  the  papers  pertaining  to 
the  settlement  of  May  10,  1900,  and  expressing  the  thanks  of  the  com- 
pany "  for  the  good  offices  so  promptly  extended  in  its  behalf."  (Dip. 
Cor.,  p.  4.) 

March  18,  1902,  the  United  States  Department  of  State  was  informed 
of  the  incorporation  of  the  Orinoco  Steamship  Com})any,  and  also  of 
the  fact  that  on  the  10th  of  the  same  month  a  resolution  had  been  duly 
passed  "authorizing  the  transfer  of  all  of  the  property  and  assets  of 
the  Orinoco  Shipping  and  Trading  Compain^,  to  the  Orinoco  Steamship 
Company."     (Dip.  Cor.,  p.  58.) 


KEPORT  OF  ROBERT  C.  MORRIS.  233 

September  15,  1902,  Minister  Bowen  called  the  attention  of  the 
Venezuelan  Government  to  the  complaint  of  the  "Orinoco  Steamship 
Company,"  "an  American  corporation,"  that  "its  contract  with  the 
Venezuelan  Government,  by  Avhich  it  was  guaranteed  the  exchisive 
navigation  of  the  Macareo  and  Pedernales  channels  of  the  Orinoco," 
had  been  violated,  and  requested  his  excellency,  the  minister  for 
foreign  affairs,  "to  bring  the  case  to  the  attention  of  your  Govern- 
ment, to  the  end  that  the  American  company  in  question  be  fully  pro- 
tected in  its  rights."     (Dip.  Cor.,  pp.  96-97.) 

Receipt  of  this  communication  was  acknowledged  by  Senor  Baralt, 
minister  for  foreign  affairs,  with  an  expression  of  the  surprise  "pro- 
duced at  the  claim  of  the  so-called  Orinoco  Stmmship  Co7i} pani/, ''\i\nd 
suggesting  that  "the  claimants  may  have  wished  to  refer  to  a  question" 
theretofore  raised  by  iSIr.  Boweu's  predecessor,  in  course  of  which  the 
Venezuelan  Government  "was  asked  to  take  into  consideration  the 
losses  alleged  to  have  been  caused  the  claimants  by  the  closing  decree 
in  question;"  to  which  request  the  Venezuelan  Government  had 
replied  stating  "the  legal  and  judicial  circumstances  which  prevented 
tne  Government  from  admitting  claims  of  that  nature,  and  pointed  out 
the  remedy  for  all  claimants  for  damages  based  on  presumptive  or 
effective  titles,"  and  reference  was  made  to  the  correspondence  in 
question  Seiior,  Baralt  stating  that  he  reaffirmed  "the  position  then 
taken  bv  this  ministry.''     (Dip.  Cor.,  p.  98.) 

The  correspondence  referred  to  appears  on  pages  138-140  of  the 
diplomatic  correspondence  in  this  case,  and,  after  referring  to  the 
damages  sustained  by  the  Orinoco  Shipping  and  Trading  Company  as 
a  result  of  the  decree  of  October  5,  1900,  disclaims  any  intention  of 
discussing  the  principle  of  free  navigation  involved  therein,  but  invites 
attention^o  matter  for  the  purpose  of  considering  "whether  or  not 
the  American  stockholders  who  own  90  per  cent  of  the  shares  of  this 
company  are  not  likely  to  suffer  losses,  owing  to  the  promulgation  of 
this  decVee,  that  should  in  justice  entitle  them  to  adequate  compensa- 
tion at  the  liands  of  the  Venezuelan  Government."  To  this  the  then 
minister  of  foreign  affairs,  Seiior  Eduardo  Blanco,  replied,  referring 
to  the  mention  made  "of  a  claim  that  is  likely  to  l)e  presented  with 
the  intervention  of  the  United  States  Government,"  that  the  question 
presented  "from  its  origin  and  nature,  as  it  is  a  case  of  litigsition,  can 
not  be  investigated  except  in  conformity  to  the  provisions  of  internal 
legislation,"  and  "in  conformity  to  instructions  from  the  Chief  Execu- 
tive, I  have  to  respectfully  inform  your  excellency  that  it  is  impossi- 
ble to  look  at  claims  of  that  kind  in  the  same  manner  as  your  excellency 
appears  to  do  in  the  concluding  part  of  your  note."  (Dip.  Cor.,  pp. 
139-140.) 

It  thus  plainly  appears  that  as  early  as  January  29,  1901,  the  Vene- 
zuelan (iovernriient  was  advised  through  diplomatic  channels  of  the 
existence  of  the  claims  against  said  (Joveniment  in  favor  of  the  Ori- 
noco Shipping  and  Trading  Co!n])any  and  of  the  disposition  of  the 
United  States  to  intervene  in  behalf  of  the  American  stockholders  in 
said  corporation,  and  later  of  the  fact  that  the  American  corporation, 
the  Orinoco  Steamship  Company,  had  taken  over  the  assets  of  the  for- 
mer com])any,  including  the  claims  in  question,  and  that  the  United 
States  (ioverninent  was  still  disi)osed  to  intervene  in  such  behalf  on 
ac(tount  of  the  damages  occasioned  as  aforesaid. 


234  REPORT    OF    R0I5EKT    0.    MORRIS. 

It  can  not,  tlu'rcforc,  be  reasonably  argued  that  the  two  (lovern- 
nu'nts,  acthio-  throiiLih  their  res|)e<-tive  plenipotentiaries,  when  effect- 
ini>-  the  [)rotoeol  under  which  this  Connnissiou  is  acting-,  were  not  fully 
cooiiizjint  of  the  existence  and  pendency  of  this  yery  claim,  or  that 
they  did  not  intend  affirmatiyely  by  the  word  "owned"  (poseidas), 
specially  selected  as  it  was — for  its  use  in  this  protocol  is  uuiipie — to 
cover  this  yery  case  whose  continu(Hl  ])enden('y  unsettled  was  calculated 
to  vex  sorely  both  Governments.  The  purpose  was  undoubtedly  to 
dis])ose  forever  of  all  outstandino-  diti'erences  between  the  countries, 
and  the  wortls  used,  in  tlie  protocol  to  efiect  that  end  are  so  clear  as  to 
leave  no  room  for  construction. 

The  pendency  of  the  claims  in  question  was  known  by  both  Govern- 
ments. Thtit  they  had  been  transferred  to  and  were  consequently 
owned  by  the  Orinoco  Steamship  Company,  a  citizen  of  the  United 
States,  was  equally  well  known.  Equally  possessed  of  such  knowledge, 
the  high  contracting  parties  agreed  to  submit  to  the  determinationof 
arbitrators  ''all  claims  owned  by  citizens  of  the  United  States."  That 
the  high  contracting  parties  Avere  competent  to  so  stipulate  must  be 
admitted  by  every  one  who  asserts  that  the}^  possess  the  attributes  of 
sovereignty.  Having  evidenced  their  agreement  b}^  the  use  of  the 
most  apt  words  to  be  found  in  the  English  and  the  Spanish  languages 
to  express  the  desired  end,  it  woukl  seem  to  be  idle  to  attack  the  juris- 
diction of  this  Commission  bj^  invoking  a  general  principle  which, 
while  applicable  where  the  treaty  is  silent,  all  agree  must  yield  when 
the  treaty  by  words  specially  selected  speaks  otherwise. 

Second.  But  it  is  also  said  that  as  all  clauses  of  the  contract  are 
equally  obligatory,  the  claimant  should  be  required  to  conform  to  that 
provision  of  the  contract  which  relegates  all  disputes  between  the 
parties  to  the  Venezuelan  courts  without  recourse  to  diplomatic  inter- 
vention. 

Article  14:  of  the  contract  of  navigation,  which  is  undoubtedly 
referred  to  in  this  connection,  provides  (Memorial,  p.  -i)  that  ''Dis- 
putes and  controversies  which  may  arise  ivit/i  reiiard  to  the  interpreta- 
tion or  e.recHtion  of  this  contract  shall  be  resolved  by  the  tribunals  of 
the  Republic  in  accordance  with  the  laws  of  the  nation,  and  shall  not  in 
any  case  be  considered  as  a  motive  for  international  reclamations. 

It  is  to  be  remarked  in  the  first  place  that  no  dispute  has  arisen 
between  the  parties  concerning  either  the  infer j)i'et<it ion  or  e.recution 
of  said  contract.  The  Venezuelan  Government  havmg-  seen  tit,  by  its 
decree  of  October  5,  1900,  to  put  an  end  to  the  entire  vahie  of  the  con- 
cession by  granting  to  other  steamers  plying  between  Trinidad  and 
Ciudad  Bolivar  the  right  to  ply  through  the  Macareo  and  Federnales 
channels,  contrary,  as  we  assert,  to  the  provisions  of  article  0  of  the 
contract  by  which  the  Government  undertook  to  concede  to  no  other 
line  of  steamers  "any  of  the  benefits,  concessions,  and  exemptions  con- 
tained in  the  present  contract,"  a  claim  arose  in  favor  of  the  parties 
interested  for  the  destruction  of  the  property  rights  embodied  in  the 
contract.  The  Government,  having  in  fact  annulled  the  concession  by 
destroying  its  only  value,  could  not  reasonal)ly  assert  that  it  was  still 
in  force  either  for  the  purpose  of  availing  itself  of  the  stipulations  in 
its  favor  therein  contained,  or  for  any  purpose  whatever. 

Besides,  the  high  contracting  jiowers  having  agreed  to  submit  this 
claim  togethcn-  with  others  arising  out  of  contracts  containing"  a  similar 
clause  to  this  Commission  for  adjudication,  it  is  idle  for  the  agent  of 


REPORT  OF  ROBERT  C.  MORRIS.  235 

Venezuela  to  dispute  the  express  terms  of  the  protocol  which,  ad  hoe, 
is  the  supreme  law  of  the  land. 

This  claim  having-  been  submitted  to  the  Commission  for  adjutiica- 
tion,  the  protocol  declares  that  it  shall  be  decided  "without  regard  to 
objections  of  a  technical  nature  or  of  the  provisions  of  local  legis- 
lation."' 

To  oppose  the  jurisdiction  of  this  Commission  to  assess  and  award  to 
the  claimant  compensation  for  services  rendered  to  the  Government 
and  for  damages  sutiered  at  the  hands  of  the  Government  by  its  capri- 
cious destruction  of  the  property  value  of  the  concession  because  the 
contract  of  concession  under  which  the  company  was  acting  contained 
a  provision  that  all  disputes  arising  out  of  its  inter pretaiion  or  txecn- 
tion  should  be  referred  to  local  tribunals,  would  seem  to  be  nothing 
more  than  to  submit  for  the  consideration  of  the  Commission  a  mere 
technical  o1)jection. 

Considering  the  terms  of  the  protocol,  it  would  seem  impossible  to 
question  the  jurisdiction  of  the  Commission  on  this  ground.  It  is  well 
settled  that — 

When  citizens  of  the  United  States  go  to  a  foreign  country,  they  go  with  an 
implied  understanding  that  they  are  to  obey  its  laws  and  submit  themselves  in  good 
faith  to  its  established  tribunals.  When  they  do  busiiie?s  with  its  citizens,  or  make 
private  contrac-ts  there,  it  is  not  to  be  expected  that  either  their  own  or  the  foreign 
government  is  to  l)e  made  a  party  to  this  business  or  these  contracts,  or  will  under- 
take to  determine  any  dispute  to' which  they  give  rise.  *  *  *  The  case  is  widely 
different  when  the  foreign  government  becomes  itself  a  party  to  important  contracts, 
and  then  not  onlv  fails  to  fulfill  them,  but  capriciously  annuls  them,  to  the  great 
loss  of  those  who"  have  invested  their  time,  labor,  and  capital  in  their  reliance  upon 
its  good  faith  and  justice.  (Mr.  Cass,  Secretary  of  State,  to  Mr.  Dimitry,  May  3, 
1860;  2  Wharton's  Digest,  sec.  230,  p.  615.) 

Rut- 
in any  case,  by  the  rule  of  natural  justice  obtaining  universally  throughout  the  world, 
wherever  a  legal  system  exists,  the  obligation  of  parties  to  a  contract  to  appeal  for 
judicial  relief  is  reciprocal.  If  the  Eepublic  of  Salvador,  a  party  to  the  contract 
which  involved  the  franchise  to  El  Triunfo  Company,  had  just  ground  for  complaint 
that  under  its  organic  law  the  grantees  had,  by  misuser  or  nonuser  of  the  franchise 
granted,  brought  upon  themselves  the  penalty'of  forfeiture  of  their  rights  under  it, 
then  the  course  of  that  (lovernmcnt  should  have  been  to  have  itself  appealed  to  the 
courts  against  the  company  and  there,  by  the  due  process  of  judicial  proceedings, 
involving  notice,  full  opportunity  to  be  lieard,  consideration,  and  solemn  judgment, 
iiave  invoked  and  secured  the  remedy  sought. 

It  is  abhorrent  to  the  sense  of  justice  to  say  that  one  party  to  a  contract,  whether 
such  partv  be  a  private  individual,  a  monarcii,  or  a  government  of  any  kind,  may 
arbitrarily  without  hearing,  and  without  impartial  procedure  of  any  sort,  arrogate 
the  right  to  condemn  the  otlier  party  to  the  contract,  to  pass  judgment  upon  him 
and  his  acts,  and  to  impose  upon  him  the  extreme  penalty  of  forfeiture  of  all  his 
rights  under  it,  including  his  property  and  his  investment  of  capital  made  on  the 
faith  of  that  contract. 

I'.efore  the  art)itrament  of  natural  justice  all  parties  to  a  contract  as  to  their  recip- 
rocal rights  and  their  reciprocal  remedies  are  of  equal  dignity  and  are  equally  enti- 
tled to  invoke  for  their  redress  and  for  their  defense  the  hearing  and  the  judgment 
oi  an  impartial  and  disinterested  tril)unal.  (Opinion  of  umpire,  Sir  Henry  Strong, 
and  Commissioner  Dickinson  in  Kl  Triunfo  Company,  Ltd.,  case.) 

As.suming  for  the  moment,  as  seems  to  be  the  contention  of  the 
agent  for  the  respondent  Government,  that  clau.se  14:  of  the  contract 
of  June  8,  1894,  had  a  bearing  upon  the  matters  in  controversy 
between  Venezuela  and  the  company,  it  nuist  be  apparent  that  the 
ol)ligations  of  that  clause  bore  equally  and  reciprocally  upon  both 
parties  thereto,  and  when  V<'nezuela  without  re.^ort  to  the  tril>unals  of 
the  Republic  destroyed  the  value  of  the  concession  by  the  decree  of 


236  REPORT  OF  ROBERT  0.  MORRIS. 

Oc'tolxM-  5,  11)00,  and  furtluM-  sliowed  hov  own  disroo-ard  of  tho 
iV(|nironiont  in  question  which  liad  boon  ropoatod  in  tho  settlement 
aurooniont  of  May  10,  lt»00,  by  ])i-oolainiino-  on  I)ooein})or  1-1,  1!H)1, 
tho  foit'oituro  and  annulment  ot'  the  extension  itself,  it  is  certain  that 
the  company,  the  other  party  to  the  contract,  was  thereby  absolved 
from  all  obligation  if  any  had  theretofore  existed  on  sucli  score. 

In  any  event  Venezuela  was  competent  to  waive  the  restritrtive  clause 
referred  to  and  to  submit  the  disputed  matters  to  the  judgment  of  an 
independent  tribunal,  and  this  she  has  done  beyond  cavil. 

Third.  It  is  further  o])jccted  that  it  would  be  inequitable  for  this 
international  tribunal  to  consider  the  claim  of  the  claimant  company 
and  to  render  an  award  in  its  favor,  because  the  respondent  govern- 
ment has  claims  of  good  origin  /<>  nxtlxe  against  the  claimant  which  she 
can  not  substantiate  before  the  Commission. 

It  is  to  be  noticed  that  it  is  not  asserted  that  the  respondent  is  in 
possession  of  any  liquidated  claim  against  the  company  which  it 
desires  to  urge  by  way  of  a  set-off.  If  such  liquidated  claim  actually 
existed  it  would  not  be  contended  for  one  instant  that  under  the  gen- 
oral  principles  governing  submissions  to  arbitration  for  settlement  in 
accordance  with  equity  it  could  not  be  urged  by  way  of  set-ofi'  or  coun- 
terclaim, for  to  determine  a  claim  according  to  equity  and  justice 
would  be  but  to  award  in  favor  of  the  claimant  Avhat  was  actually  his 
due,  and  it  could  not  be  contended  that  there  was  in  such  case  actually 
due  more  than  the  difference  between  the  claim  and  the  ofi'set.  But 
here  it  is  to  be  noted  that  Venezuela  sets  up  a  mere  unliquidated 
demand  which  upon  investigation  may  be  found,  as  it  doubtless  will 
be,  to  be  without  any  foundation  either  in  fact  or  law.  And  it  is  par- 
ticularly to  be  noted  in  this  connection  that  never  during  the  negotia- 
tions resulting  in  the  settlement  of  May  10, 1900,  nor  at  any  time  sub- 
sequent thereto  until  after  the  presentation  of  tho  claimant  company's 
claim  to  this  tribunal  was  it  ever  intimated  that  the  respondent  Gov- 
ernment possessed  counterclaims  against  the  company.  The  after- 
thought comes  too  late,  and,  if  this  Commission  should  give  heed  to 
it,  it  is  easily  to  be  perceived  that  by  resorting  to  a  similar  plea  in 
other  cases  presented  on  behalf  of  American  citizens  the  Commission 
would  readily  be  stripped  of  all  its  functions  under  the  protocol.  If 
the  counterclaim  or  offset  now  asserted  for  the  first  time  had  in  fact 
existed,  it  should  have  been  suggested  at  least  not  later  than  during 
the  negotiations  which  resulted  in  the  protocol  and  it  can  not  be 
doubted  that  ample  provision  would  have  been  made  therein  for  its 
consideration  and  adjustment. 

It  is  certain,  however,  that  the  Commission  should  not  refuse  to 
consider  and  decide  the  claim  which  it  has  jurisdiction  of  because  it  can 
not  take  into  account  a  possible  offset  which  has  no  existence  in  fact. 

Fourth.  With  respect  to  the  item  of  100,000  bolivars,  due  as  the 
second  installment  of  cash  agreed  to  be  paid  under  the  terms  of  the 
settlement  of  May  10,  1900,  it  is  urged  on  behalf  of  Venezuela  that 
same  should  ))e  rejected,  because — 

{a)  A  new  creditor  has  been  substituted  for  the  former  one  without 
the  consent  of  or  notice  to  the  debtor; 

{I))  Because  Venezuela  has  the  right  and  should  be  afforded  the 
opportunity  to  offset  against  the  same  amounts  which  the  original 
debtor  owes  to  her;  and 

(c?)  Because  b}'  the  terms  of  the  contract  itself,  the  concessionary 


REPORT  OF  ROBERT  C.  MORRIS.  237 

company  agreed  that  "every  question  that  might  arise  b}-  reason  of 
that  agreement  shoukl  be  submitted  to  the  tribunals  of  Venezuchi  for 
decision  and  could  never  be  open  to  international  reclamations.'" 

Referring  to  the  last  of  these  objections  lirst,  it  is  but  necessary  to 
call  attention  to  the  fact  that  the  clause  of  the  settlement  contract 
referred  to  is  not  so  broad  as  is  there  stated,  but  that  the  agreement 
for  submission  to  the  Venezuelan  courts  is  strictly  limited  to  "doubts 
and  controversies  which  may  arise  v.ith  respect  to  the  interpretation 
and  execution  of  this  contract.'''  And  it  would  seem  that  in  no  fair  or 
equitable  sense  has  any  controversy  arisen  either  with  respect  to  such 
"interpretation  or  execution'''  of  the  contract,  but,  on  the  contrary,  it 
being  conceded  that  the  sum  mentioned  is  due  by  the  express  terms  of 
the  settlement  contract,  it  is  sought  to  avoid  payment  thereof  by  assert- 
ing an  oii'set  or  counterclaim  which  in  law  was  tinally  settled  by  the 
"transaction"  itself,  and  which,  at  least  in  liquidated  form,  has  never 
had  an}"  existence  in  fact. 

The  agreement  of  settlement  was  executed  May  10,  1900.  On  July 
14,  1001,  Mr.  Russell  reported  to  Mr.  Hay  that  he  "had  a  long  inter- 
view with  the  foreign  minister  on  this  subject — i.  e.,  the  pa^'ment  of 
the  second  installment  of  100,000  bolivars — and  he  admitted  that  the 
whole  of  the  200,000  bolivars  had  to  be  paid  in  gold,  and  the  only  reason 
that  Mr.  Olcott's  name  appeared  as  one  of  the  claimants  before  the  late 
claims  conmiission  was  that,  in  accordance  with  article  2  of  the  contract, 
the  Commission  has  to  fix  the  date  for  paying  the  second  100,000  bol- 
ivars."    (Dip.  Cor.,  p.  36.) 

And  again,  on  Jul}^  31,  1901,  Mr.  Russell  cabled  the  Secretary  of 
State  at  Washington  that  the  "Government  of  Venezuela  made  the 
proposal  to  pay  (one)  thousand  bolivars  a  month."     (Ibid.,  p.  38.) 

From  this  it  is  plain  that  as  late  as  the  last-mentioned  date  (July  31, 
1901)  no  thought  of  the  existence  of  a  set-off  had  arisen  in  the  minds 
of  the  executive  officials  of  the  respondent  Government,  nor  had  there 
been  an}^  suggestion  that  the  above  amount  was  not  wholly  due  and 
payable. 

Nor  does  it  seem  necessary  to  answer  objection  h  further  than  to 
refer  to  the  argument  heretofore  submitted  under  point  No.  3.  With 
respect  to  objection  </,  it  would  seem  that  the  agent  for  Venezuela  nuist 
have  had  in  mind  some  provision  of  local  legislation,  regard  for  which 
is  expi-essly  excluded  by  the  terms  of  the  protocol.  As  the  item  is  a 
li([uidatcd  one,  and  the  right  to  recover  it  had  vested,  it  Avould  seem 
by  all  pi-inciples  of  recognized  conmiercial  dealing  to  have  been 
assignable,  and  was  so  at  least  under  the  peculiar  circumstances 
governing  the  relation- of  the  assignor  and  assignee  in  this  case. 

All  that  Venezuela  can  care  for  or  reasonably  demand  in  respect  to 
such  item  is  that  she  shall  be  sure  that  a  payment  to  the  claimant  of 
such  amount  under  the  award  of  this  Connnission  will  operate  as  an 
acquittance  with  respect  to  any  and  all  other  claimants  whatsoever, 
and  of  this  there  can  be  no  well-founded  or  reasonal)lc  doubt,  for  by 
the  articles  of  assignment  from  the  Orinoco  Shipping  and  Trading- 
Company,  Limited,  to  the  claimant,  set  forth  as  Exhibit  C  (memorial, 
p.  61),  the  former  company  would  ever  be  estopped  from  asserting 
any  claim,  and  the  receipt  of  claimant,  or  his  assigns  if  any,  would 
be  a  full  acquittance. 

Witii  respect  to  the  objections  made  to  the  claim  for  damages  resulting 
from  the  effects  of  the  decree  of  Octol^er  5, 1900,  it  seems  well  for  the 


238  REPORT  OF  KOHERT  C.  MORKIS. 

purpose  ol'  luuidiiiti'  iH'vtain  ini.siipprchciisions  which  seem  to  liave 
fastened  themselves  in  the  mind  of  the  honoi'a])le  ag'cnt  for  Venezuela 
to  review  l)rietly  the  leg-islative  history  of  recent  years  coiicerninj^  the 
navigation  of  the  Orinoco  River,  and  also  to  analyze  the  terms  ot  the 
company's  concession  and  the  claims  now  asserted  for  its  breach. 

In  the  lirst  place,  tlu^  i-laimunt  wishes  it  to  be  clearly  understooti 
that  neither  it  nor  its  predecessors  in  interest  at  any  time  have  laid 
claim  to  a  »>-rant  of  the  exclusive  navigation  of  the  Orinoco  River. 

An  ins})ection  of  aii}'  j:;"ood  map  of  Venezuela  will  disclose  the  fact 
that  the  vast  volunH>  of  water  forming  the  Orinoco  River  is  discharged 
into  the  sea  througli  several  mouths,  certain  of  which,  particularly  the 
Boca  Grande,  debouch  directly  into  the  Atlantic  Ocean,  while  certain 
of  the  lesser  mouths,  and  particularly  what  are  known  as  the  Macareo 
and  Pedernales  channels  or  mouths,  debouch  into  the  inland  sea  called 
the  Gidf  of  Parla.  Of  the  many  mouths  flowing  into  the  Gulf  of 
Faria  onl}'  the  two  last  above  named  are  at  all  practicable  for  steam- 
boats of  any  reasonable  capacity.  While  the  Boca  Grande  is  navigabl(> 
at  all  seasons  of  the  year  by  ocean-going  craft,  dui'ing  the  dry  season 
the  water  in  the  river  itself,  and  particularly  between  San  Felix  and 
Bolivar,  becomes  so  low  as  to  render  the  navigation  of  the  river  l)y 
such  craft  dangerous  if  not  quite  impossible.  It  is,  therefore,  appar- 
ent that  navigation  of  the  river  b}"  boats  capable  of  plying  through 
the  Boca  Grande  might,  and  in  fact  would,  be  interrupted  at  certain 
seasons  of  the  year  because  of  low  river;  nevertheless,  smaller  boats 
of  light  draft,  though  incapable  of  navigating  the  Boca  Grande  and  its 
sea  approaches  if  entrance  by  the  river  be  had  otherwise,  could  lind 
therein  sufficient  water  to  enalde  them  to  navigate  all  the  year  round. 
The  protected  w^aters  of  the  Gulf  of  Faria  in  combination  with  the 
Macareo  and  Federnales  channels  or  mouths  afford  just  such  an 
opportunity. 

In  addition  to  the  above  it  will  also  be  noted  that  these  mouths  or 
channels  afford  the  shortest  route  for  communication  between  Fort  of 
Spain,  Trinidad,  and  the  city  of  Ciudad  Bolivar. 

The  value  of  the  right  to  navigate  such  channels  or  mouths  has  long- 
been  recognized.  On  Ma}-  14, 186!*,  the  Congress  of  Venezuela  threw 
"open  to  merchant  steam  vessels  under  foreign  flags  that  undertake 
the  inland  navigation,  the  navigation  of  the  river  Orinoco  and  its 
affluents. "  The  Venezuela  Si  earn  Transportation  Company,  an  Amer- 
ican corporation,  built  and  equipped  three  steamers  with  special  refer- 
ence to  the  navigation  of  these  inland  waters,  and  dispatched  them  in 
sections  to  Venezuela  where  they  were  put  together  and  began  service. 
The  subsequent  history  of  that  venture  is  not  important  here,  but  may 
be  found  in  the  report  of  the  case  of  the  Venezuela  Steam  Transporta- 
tion Company,  in  2  Moore's  Int.  Arb.,  p.  1693,  et  scq. 

Subsequently,  in  November,  1892,  Mr.  Scruggs,  then  United  States 
minister  to  Venezuela,  sent  to  the  minister  of  foreign  afl'airs  copy  of 
a  letter  from  John  H.  Dialogue  &  Son,  of  Camden,  N.  J.,  stating  that 
they  were  contemplating  the  building  of  vessels  with  which  to  navi- 
gate the  bayous  of  the  Orinoco  River,  but  before  entering  upon  such 
expense  they  desired  to  know  whether  "these  bayous  as  well  as  the 
main  channel  were  open  to  all  flags,  and  especially  the  American,  and 
whether  the  condition  would  likely  be  permanent,'"  to  which  Doctor 
Rojas,  then  minister  for  foreign  afl'airs,  replied  to  the  efi'ect  that 
foreign  vessels  bound  for  Ciudad  Bolivar  were  permitted  to  enter  the 


REPORT  OF  ROBERT  C.  MORRIS.  239 

Orinoco  River  by  an}-  of  the  mouths  and  return  likewise  l)v  any  of 
them.  This  assurance,  such  as  it  was,  having-  been  communicated 
through  the  Department  of  State,  at  Washington,  to  Dialogue  &  Son, 
the}'  set  about  constructing  a  vessel  ''especially  for  the  navigation  of 
the  Orinoco  River  through  the  mouths  adjacent  to  Port  of  Spain," 
but  untitted  for  navigating  through  the  principal  mouth.  (Foreign 
Relations  of  the  U.  S.,  1893,  p.  737;  also  Foreign  Relations  U.  S., 
1894.) 

Before  the  vessel  was  full}*  completed,  on  July  1,  1893,  President 
Crespo  decreed  that — 

Vessels  engaged  in  foreign  trade  with  Ciudad  Bolivar  shall  be  allowed  to  proceed 
only  by  way  of  the  Boca  Grande  of  the  Eiver  Orinoco;  the  Macareo  and  Pedernales 
channels  being  reserved  for  the  coastal  service;  navigation  ])y  the  other  channels  of 
the  said  river  being  absolutely  prohibited — 

together  with  other  matters  not  here  important,  and  this  decree  was 
subsequently  ratified  and  confirmed  by  the  Congress  of  Venezuela. 
(Memorial,  pp.  6,  7.) 

The  validity  of  such  decree  was  also  subsequently  aflirmed  by  the 
hig'h  federal  court  of  Venezuela  in  the  matter  of  George  F.  Carpenter, 
copy  of  translations  of  the  opinion  of  the  special  comnussion  and  the 
sentence  of  the  court  in  that  connection  being  submitted  herewith. 

The  free  navigation  of  the  Macareo  and  Pedernales  chann(ds  ha^'ing 
thus  been  prohibited  l)y  law,  President  Crespo  on  the  17th  of  Januar}^, 
189-4,  for  the  A'arious  considerations  therein  recited,  entered  into  the 
contract  for  the  navigation  of  those  channels  which  lie  <it  the  basis  of 
the  present  claim,  the  contract  itself  as  subsequently  appro^  ed  by  the 
Venezuelan  Congress  being  spread  at  large  in  the  memorial  at  pages 
8  to  11,  inclusive. 

By  article  1  of  said  contract,  the  concessionaire  undertook  to 
establish  and  maintain  "navigation  by  steamers  l)etween  Ciudad 
Bolivar  and  Maracaibo  ■^"  *  *  in  such  manner  that  at  least  one 
journey  per  fortnight  be  made,  touching,  etc.      "      '•     *     ."' 

B}'  article  3  of  the  contract,  the  concessionaire  agreed  to  transport, 
free  of  charge,  the  mails,  and  by  article  5  to  recei^■e  on  ))oard  of  each 
steamer  a  government  employee  to  loolc  after  the  same,  and  also  to 
transport  at  reduced  rates  public  employees,  military  men,  troops, 
materials  of  war.  and  freights  shipped  for  account  or  by  order  of  the 
National  Government. 

By  ai-ticle  7,  the  Government  of  Venezuela  bound  itself  to  pay  to 
the  contractor  (concessionaire)  a  monthl}-  subsidy  of  4,o00  bolivars 
"so  long  as  the  conditions  of  the  present  contract  are  duly  carried 
out,"  and  by  articles  8,  9,  10,  atid  11,  the  company  was  exonerated 
from  pa3Mne!it  of  import  duties  on  all  machinery,  etc.,  imported  for 
the  use  of  the  steamers;  was  permitted  to  cut  wood  from  the  national 
forests  for  construction  i)ur]K)ses  and  fuel;  the  officers  and  crews  of 
the  steamers  were;  exempted  from  military  service,  and  the  steamers 
wei-e  granted  in  the  ports  of  the  Repul)lic  the  freedom  and  preferences 
by  law  established  and  "enjoyed  by  steamers  of  lines  established  with 
lixed  itinerary." 

B}'  article  12  it  was  provided  that  "any  one  of  the  steamers  leaving 
Triiiidad  may  also  navigate  ]>y  the  channels  of  the  Macareo  and  Peder- 
nales of  the  River  Orinoco  in  confoimity  with  the  formalities  which 
by  special  resolution  may  be  imposed  by  the  minister  of  iinance  in 
order  to  prevent  contraband,"  and  b}'  article  (5  the  Government  hound 


240  KKl'OKT    OF    UOHEKT    ('.    MOKIllS. 

it)<i'lf  not  to  cODCtxU  to  any  "ot/u/'  line  of  ^taoiurf^  <iiiij  of  the  henejits^ 
concessions^  and  e.remptions  contained  in  the  present  contract  {tchich  are 
granted)  as  compensation  for  the  services  which  the  company  undertakes 
to  render.-'' 

By  article  13  it  was  provided  that  the  contract  should  remain  in 
force  for  iifteen  years  from  tlie  date  of  its  approl)atioii. 

It  will  appear,  therefore,  that  all  in  the  way  of  a  monopoly"  of  navi- 
gation which  the  concessionaire  or  so-called  contractoi'  was  entitled  to 
claim,  and  all  in  that  respect  that  the  claimant  company  has  in  fact 
ever  claimed,  was  the  exclusive  rightof  navigation  of  the  Macareoand 
Pedcrnales  channels  by  vessels  engaged  in  foreign  trade — that  is,  ply- 
ing between  Trinidad  and  the  Orinoco  Kiver  ports. 

As  Trinidad  was  at  the  date  of  the  grant  and  ever  since  has  con- 
tinued to  be  a  port  of  transshipment  for  foreign  freights  bound  from 
or  consigned  to  Bolivar  and  other  Orinoco  Kiver  ports,  the  great  value 
of  such  an  exclusive  right  is  at  once  apparent. 

As  required  by  the  terms  of  the  contract,  the  concessionaire  estab- 
lished, and  his  assigns  maintained  until  'oroken  by  superior  force,  a 
line  of  steamers  between  Ciudad  Bolivar  and  La  Guaira,  the  journey 
both  ways  l)eing  made  via  Port  of  Spain,  Trinidad. 

The  service  from  La  Guaira  to  Maracaibo  has  never  been  estab- 
lished, the  Government,  after  twice  extending  the  time  for  the  estab- 
lishment of  such  service  (memorial,  pp.  13,  11),  on  May  10,  1900, 
expressly  exempted  the  concessionaire  from  the  obligation  to  establish 
the  same,  and  the  company  on  its  part  renounced  its  right  to  receive 
the  subsidy  of  1,000  bolivars  per  month  stipulated  to  be  paid  by  arti- 
cle 7  of  the  contract  (mem.,  p.  22),  which  subsidy  never  had  been  paid 
and  on  account  of  which  no  claim  has  ever  been  urged  by  the  company. 
(Dip.  Cor.,  p.  29.) 

Between  Trinidad  and  Ciudad  Bolivar  the  company  established  and 
alwa3^s  maintained  the  required  service  of  fortnightly  trips  until  about 
May  31,  1902,  when  the  company's  steamer  Boiivar^  while  on  her  reg- 
ular itinerary  was  stopped  in  the  neighborhood  of  San  Felix  by  national 
authority  (J.  Sarria  Hurtado,  president  of  State  of  Guayana),  and 
after  her  cargo  had  been  broached  in  part  and  other  stores  and  sup- 
plies and  sacks  of  mail  had  been  taken  from  her,  she  was  ordered  to 
return  to  Trinidad  with  an  order  addressed  to  the  general  manager  of 
the  Orinoco  Steamship  Company  in  the  following  terms: 

CoxsTiTucioxAL  Predexcia  IX  Campaigx,  State  op  Bolivar, 

San  Felix,  31st  May,  1902. 
Ciudad  Bolivar,  capital  of  this  State,  beino;  occupied  by  revolutionary  troops,  in 
arms  against  the  constitutional  government  of  the  nation,  I  have  been  compelled  to 
transfer  the  seat  of  government  in  accordance  with  the  express  dispositions  of  the 
constitution,  to  this  town;  and  1  notify  you  thereof  in  order  that,  from  now  onward, 
and  until  public  peace  shall  have  been  reestablished,  you  abstain  from  dispatching 
the  steamers  at  your  couunand  for  said  port  of  Bolivar,  occupied  by  the  enemy,  asl 
shall  be  otherwise  forcibly  compelled  to  impede  the  said  steamers  proceeding  to  their 
destination. 

God  and  the  federation. 

J.  Sakkia  Hurtado. 
(Dip.  Cor.,  83.) 

Against  this  order  to  cease  dispatching  steamers  to  Bolivar,  the 
general  manager  of  the  company,  ^Ir.  Turner,  on  June  6,  1902,  pro- 
tested ))efore  the  American  consul  in  Trinidad,  expressly  calling 
attention  therein  to  the  fact  that — 


BEPORT  OF  ROBERT  C.  MORRIS.  241 

My  company  is  bound  by  contract  with  the  Venezuelan  Government  to  maintain 
a  fortnightly  mail  service  between  Trinidad  and  the  aforesaid  port  of  Ciudad  Boli- 
var; and  the  prohibition  above  mentioned  prevents  the  company  from  carrying  out 
that  contract,  and  exposes  the  company  to  other  serious  consequences.     *    *    * 

Under  the  circumstances  enumerated,  I  desire  on  behalf  of  my  company  that  you 
will  have  the  goodness  to  communicate  by  cable  with  your  Government  at  Wash- 
ington, with  a  view  of  their  affording  such  protection  for  the  rights,  contracts,  and 
interests  of  the  Orinoco  Steamship  Company  as  they  may  consider  justifiable.  (Dip. 
Cor.,  88-89.) 

Repeated  apjjlication.s  for  cjearances  of  the  company's  vessels  for 
Bolivar  having  been  refused  b3"  the  Venezuelan  consul  in  Trinidad, 
the  matter  was  on  August  29,  1902,  brought  to  the  attention  of  the 
Secretarv  of  State  of  the  United  States  (August  29,  1902.  Dip.  Cor., 
90;  September  22,  1902,  Dip.  Cor.,  99;  and  December  8^  1902,  Dip. 
Cor.,  100),  who  from  time  to  time  commimicated  through  the  legation 
in  Caracas  with  the  Venezuelan  Government  on  the  subject  without 
avail. 

As  from  the  31st  of  May,  1902,  to  the  21st  day  of  July,  1903, 
Ciudad  Bolivar  has  continuously  remained  in  the  hands  of  the  revo- 
lutionary troops,  and  the  Venezuelan  consul  in  Trinidad  has  steadfastly 
refused  clearances  for  the  compan3'\s  vessels  bound  foi"  Orinoco  ports, 
and  as  the  general  navigation  of  the  river  has  from  time  to  time 
throughout  the  intervening  period  been  interrupted  by  blockades, 
both  domestic  and  foreign,  and  bv  prohibitor}^  decrees  backed  with -at 
least  a  desultory  show  of  force,  it  would  seem  that  any  and  all  failures 
to  maintain  a  regular  fortnightly  service  since  said  31st  day  of  Maj", 
1902,  must  be  passed  without  penalty,  even  if  since  said  date  the  com- 
pany was  under  an}"  obligation  to  the  Venezuelan  Government,  con- 
tractual or  otherwise,  to  maintain  such  service,  it  being  here  suggested 
that  the  decree  of  the  Supreme  Chief  of  the  Republic  of  October  5, 
1900,  which  Avas  subsequent!}^  ratified  and  coniirmed  on  the  11th  day 
of  March,  1901,  by  the  Venezuelan  Congress,  destroying  as  it  did  the 
company's  exclusive  rights  of  navigation  in  the  Macareo  and  Peder- 
nales  channels,  at  the  same  time  absolved  the  company  itself  from  all 
necessity  of  compliance  on  its  part  with  the  contract  terms. 

With  respect  to  so  much  of  the  contract  as  required  navigation  to 
be  regularly  maintained  l)etween  the  Orinoco  River  and  La  Guaira 
(the  service  to  Maracaiho  ])eing  dropped,  as  above  stated),  it  is  to  be 
noted  that  the  company  also  performed  its  duty  in  that  respect,  as  the 
records  of  the  Venezuelan  customs-house  at  La  Guaira  will  show,  until 
October  19,  1S99,  on  which  date  the  company's  steamer  17 ^icwZor,  with 
which  that  service  was  ])eing  performed,  was  seized  at  the  port  of 
Porlamar  by  ''men  armed  with  Winchester  and  Mauser  ritles,"  who 
boarded  the  vessel,  "declaring  that  they  took  the  steamer  for  the  pur- 
pose of  placing  it  at  the  service  of  the  revolution,  which  was  then  in 
course  of  development  in  Venezuela,  headed  by  Gen.  Cipriano  Castro." 
The  steamer  was  then  dispatched  1)V  Gen.  Asuncion  Rodriguez,  the 
chief  of  the  then  revolutionary  party  in  Margarita,  to  Carupano, 
where  she  was  used  by  General  Castro's  adherents  as  a  transport  ship 
for  carrying  troops  and  sup])lics.  (See  protest  of  Jose  Vicente  Rod- 
riguez, made  October  30,  1.S99,  at  Port  of  Spain,  copies  of  which  are 
submitted  lierewith,  marked  "Exhibit  A.") 

The  vessel  was  retained  in  the  possession  of  the  forces  of  (ieneral 
Castro  until  February  10,  I'.Mjo — a  period  of  one  hundred  and  fourteen 

S.  Doc.  317,  58-2 16 


242  REPORT  OF  ROBERT  C.  MORRIS. 

days — when  she  "W.as  restored  to  the  possession  of  tlie  company  in  a 
badly  dania.o-ed  (M^ndition.     (Hip.  Cor.,  p.  117.) 

The  action  of  the  revolutionists  in  seizing"  and  making  use  of  this 
vessel  was  approved  by  General  Castro  himself,  as  was  evidenced  by 
the  settlement  made  between  Mr.  Olcott  and  the  minister  of  the  inte- 
rior May  10,  1900  (Memorial,  p.  1900),  one  of  the  main  items  of  the 
company's  claims  then  presented  and  settled  covering  the  detention  of 
and  damage  to  this  steamer. 

As  a  circumstance  connecting  the  two  official  papers  which  covered 
the  transaction  of  May  10,  1900,  it  is  to  ])o  noted  that  at  the  time  it 
was  estimated  that  it  would  require  one  year  to  repair  the  steamer 
(Dip.  Cor.,  117);  and  })y  article  2  of  the  paper  providing'  for  the  six 
3^ears'  extension  of  the  contract  of  navigation  the  company  was  allowed 
twelve  months  from  its  date  within  which  to  renew  or  "  undertake  "  to 
make  the  "twelve  vo3'ages  annually  between  the  island  of  Trinidad 
and  La  Guaira,  touching  at  the  Venezuelan  ports  according  to  the 
itinerar}"  of  the  east  coast."  The  evident  expectation  of  the  parties  at 
that  time  was  that  the  service  would  be  renewed  with  the  same  steamer 
that  had  formerly  performed  it,  and  a  year's  time  was  permitted  to 
the  concessionary^  company  within  which  to  make  her  necessary  repairs. 

It  is  insisted,  therefore,  that  not  only  by  the  express  terms  of  the 
navigation  contract  of  flune  8,  1894,  did  the  concessionaire  and  his 
transferees  obtain  the  exclusive  right  of  navigation  of  the  Macareo  and 
Pedernales  channels  by  vessels  engaged  in  foreign  commerce,  but  also 
that  until  prevented  by  vis  majeure  exercised  by,  or  on  behalf  of  the 
present  existing  Government  of  Venezuela,  it  fully  complied  with 
every  obligation  imposed  upon  it  by  the  contract  concession  in  ques- 
tion. 

The  suggestion  that  the  contract  concession  amounted  merely  to  a 
■permit  to  navigate  said  channels,  and  did  not  constitute  a  grant  of  such 
right  exclusive  of  all  competition  on  the  part  of  other  ships  engaged 
in  foreign  trade,  seems  to  require  no  further  comment  or  answer  than 
a  reference  to  the  document  itself,  whose  terms,  rightly  construed, 
must  put  an  end  to  all  discussion  on  such  score. 

Points  5  and  7  of  the  answer  of  the  respondent  Government,  which 
consider  the  relation  or  want  of  it  between  the  two  separate  docu- 
ments which  claimant  contends  taken  together  constitute  the  transac- 
tion of  May  10,  1900,  may  well  be  considered  together. 

It  is  first  suggested  by  the  respondent  that  the  extension  of  the 
navigation  contract  did  not  figure  in  the  settlement  of  the  claims  in 
any  manner,  because  it  is  not  referred  to  in  the  document  in  which 
the  claims  are  mentioned,  nor  can  the  two  papers  be  bound  together 
by  the  simple  statement  of  one  of  the  interested  parties. 

Second,  that  no  allowance  should  be  made  for  the  withdrawal  of  so 
much  of  the  concession  as  Avas  covered  by  this  six  years'  extension, 
because  the  same  having  been  made  without  consideration  given  there- 
for did  not  constitute  a  binding  contract  and  was  capable  of  being 
withdrawn  by  the  grantor  at  any  time. 

While  it  may  be  true  that  in  a  court  of  law  administering  justice 
according  to  hard  and  fast  rules  and  adhering  strictly  to  the  prescribed 
rules  of  evidence  there  might  be  some  difficulty  in  directly  connecting 
the  two  instruments  in  question  as  constituting  a  single  transaction,  it 
is  to  })e  borne  in  mind  that  this  high  international  tri])unal  is  charged 
to  decide  all  claims  presented  to  it  according  to  justice,  upon  a  basis 


EEPOET  OF  ROBERT  C.  MORRIS.  243 

of  absolute  equity,  and  without  regard  to  objections  of  a  technical 
ftature. 

With  a  view  of  determining  the  objection  so  raised  in  connection 
with  the  suggestion  made  on  behalf  of  the  respondent  Government  to 
the  effect  that  the  claimant's  predecessor  on  May  10,  1900,  agreed  to 
settle  and  discharge  accrued  claims  amounting  to  over  $550,000  Amer- 
ican money,  in  consideration  of  the  receipt  of  100,000  bolivars  in  cash 
and  a  promise  to  pay  100,000  bolivars  more  thereafter,  without  any 
other  consideration  passing,  let  lis  examine  the  situation  of  both  parties 
as  it  existed  at  the  time  of  the  transaction. 

On  June  1,  1899,  bills  and  corresponding  vouchers  had  been  pre- 
sented by  the  Orinoco  Shipping  and  Trading  Company,  Limited, 
to  the  Venezuelan  Government,  covering  services  rendered  by  the 
''Red  Star  Line,"  then  owned  by  the  former  companj',  amounting  to 
$101,163.42.  These  bills  and  vouchers  were  accepted  by  the  Venezu- 
elan Government  as  correct,  and  payments  were  made  on  account 
thereof  as  follows: 

Bolivars. 

June  2, 1899 4,000 

August  24,  1899 4,000 

September  26,  1899 6,000 

October  6,  1899,  $20,400  in  salt  bonds. 

Amounting  in  the  whole  to  about  $22,800  paid  on  account,  and  leaving 
then  due  to  the  company  a  balance  of  about  $77,818.01  of  undisputed 
and  indisputable  debt  (See  Memorial,  p.  17;  Dip.  Cor.,  p.  111-112, 
and  affidavit  of  Cesar  Vicentini  made  at  Port  of  Spain  Ma}^  20,  1903.) 

Subsequent  to  the  dates  covered  by  the  above-mentioned  account, 
other  services  had  been  rendered  by  the  company  to  the  Government 
and  other  sums  had  on  account  thereof  and  on  other  accounts,  such  as 
the  seizure  and  use  of  company's  ships  by  the  Government  and  dam- 
ages done  thereto,  accrued  due  to  the  companv,  the  whole  including 
the  balance  above  mentioned,  amounting  to  more  than  a  half  of  a 
million  dollars. 

The  company,  as  was  natural,  was  pressing  for  payment.  General 
Castro's  government,  but  newly  come  into  power,  was  but  illy  sup- 
plied with  cash  funds.  The  company  believed  that  its  concession  of 
the  monopoly  of  navigating  the  interior  waterways  of  the  Orinoco 
River  was  valuable,  and  with  approaching  peace  would  become  more 
so.  The  Government,  although  poorly  supplied  with  cash,  had  the 
power  to  extend  this  concession,  and  the  company  was  willing  to  accept 
such  an  extension  in  lieu  of  cash  payment. 

Is  it  to  be  presumed  for  one  instant  that  with  an  acknowledged  bal- 
ance of  at  least  $77,800  in  round  numbers  due  and  owing  to  the  com- 
pany on  the  first  account  above  referred  to  that  any  sane  man  would 
have  agreed  to  settle  even  with  a  slow-f)aying  debtor  for  $20,000  cash 
and  a  promise  to  pay  $20,000  at  some  indefinite  time  in  the  future? 
Why  should  the  Government  at  the  very  time  that  a  settlement  of  the 
claims  on  such  terms  was  made  agree  to  extend  a  monopoly  of  navi- 
gation held  l)y  its  creditor  unless  the  extension  was  to  go  in  part  pay- 
ment? It  is  to  be  noted  that  both  ])apers  were  drawn  in  the  ministry 
of  internal  afiairs  on  the  siime  day,  that  the  negotiatoi's  were  the  same 
in  each,  that  in  addition  to  considering  settled  all  back  debts  due  fiom 
the  Government  to  the  coniimny  it  was  agreed  by  the  agent  for  the 
company  in  the  "transaction"  document  to  also  consider  as  paid  "all 


244  KKPOKT  OF  KOBEKT  C.  MOKKIS. 

sorvu'os  which  the  company  iixdj  continue  to  render  to  the  General 
Government  or  to  the  oovernments  of  the  States  up  to  the  1st  of  July 
next.'' 

In  the  "extension''  document  it  is  recited  that  "Richard  Morgan 
Olcott,  attorney  and  director  of  the  Orinoco  Shipi)ing-  and  Trading 
Company,  Limited,  having  solicited  from  the  National  Government  an 
extension  of  six  years  of  the  contract  of  navigation  dated  10th  of 
June,  1894,  *  *  *  the  Supreme  Chief  of  the  Rcpuldic,  (:Y//^y/^/«7■y/r/ 
the  reasons  on  ivhich  said  conijxiny  hases  its  petition  to  he  justified^  dis- 
poses as  follows,  etc."  It  is  always  open  to  parties  to  a  contract  to 
show  by  extraneous  evidence  the  true  consideration  upon  which  a  con- 
tract was  founded. 

In  the  sworn  memorial  it  is  stated  ))y  Mr.  Olcott,  one  of  the  parties 

to  the  transaction  itself,  that — 

It  was  agreed  that  in  full  settlement  of  the  claims  then  accrued,  due,  and  submitted, 
amounting,  as  aforesaid,  to  the  sum  of  $554,550.51,  there  should  l)e  paid  to  the  Orinoco 
Shipping  and  TradingCompany  ( Limited)  the  sum  of  200,000  bolivars  in  coined  money, 
and  the  above-mentioned  contract  or  concession  of  the  exclusive  right  to  navigate  the 
Macareo  and  Pedernales  channels  of  the  Orinoco  River  should  be  prolonged  for  the 
period  of  six  years.     *    *    *     (Memorial,  p.  19.) 

Mr.  Cesar  Vicentini  deposes  that — 

Richard  Morgan  Olcott,  managing  director,  etc.,  together  with  myself,  presented 
to  the  Government  of  the  United  States  of  Venezuela  a  statement  of  account,  with 
vouchers  corresponding  thereto,  shov.ing  the  sum  of  $554,550.53  due  from  the  said 
Government  to  said  Orinoco  Shipping  and  Trading  Company  (Limited) . 

That  said  accounts  were  adjusted  with  the  said  Government  in  my  presence  on  the 
10th  day  of  Mav,  1900,  and  the  said  Giovernment  agreed  to  pay  to  the  said  company 
the  sum  of  200,000  bolivars  in  coined  money,  *  *  ^-  and,  in  addition  to  these,  the 
said  Government,  in  consideration  and  further  settlement  of  the  above-mentioned 
account,  did  grant  to  the  said  company  a  confirmation  of  the  Macareo  and  Pedernales 
rivers  concession,  and  extended  and  "pi-olonged  said  concession  for  a  period  of  six 
years,     *    *    *    etc.     (See  affidavit  heretofore  submitted. ) 

On  June  19,  1900,  copies  of  the  articles  of  settlement  were  filed  in 
the  United  States  State  Department.     (See  Dip.  Cor.,  p.  3-4.) 

October  21,  1900,  Mr.  Russell  reported  to  the  Department  of  State 
of  the  United  States  "that  by  an  executive  decree  of  the  5th  of  this 
month  all  of  the  mouths  of  the  Orinoco  River  have  been  opened  up  to 

navigation."     "^     '^^     * 

On  the  6th  of  October,  the  day  after  the  passage  of  the  decree,  the  representative 
of  the  Orinoco  Shipping  and  Trading  Company  came  to  me  with  a  protest  against 
the  passage  of  such  a  decree  as  being  a  direct  attack  against  the  rights  of  his  com- 
pany and  a  virtual  annulment  of  the  contract  under  which  said  company  is  at  pres- 
ent operating.  A  similar  protest  was  made  to  the  English  legation,  as  the  company 
is  registered  in  London,  and  some  of  the  stockholders  are  English.  *  *  *  In 
company  with  the  English  minister  I  made  an  informal  call  on  the  minister  of  for- 
eign'affairs.  *  *  * '  The  minister  promised  to  look  into  the  matter,  but  up  to  the 
present  I  have  heard  nothing  more  from  him.  *  *  *  Some  time  ago  the  Orinoco 
Shipping  and  Trading  Companv  presented  a  claim  for  the  loss  of  two  of  its  shijis 
that  had  been  destroyed  while  on  (.lovernment  service.  This  claim  was  settled  last 
Mav,  when  the  Government  paid  100,000  bolivars  in  cash  and  agreed  to  pay  100,000 
bolivars  more  when  the  Commission  shall  meet  next  January  which  is  to  consider 
claims  for  damages  resulting  from  the  last  revolution;  and  as  a  further  compensation 
extended  the  nangalion  contract  of  1894  six  years,  which  contract  contained  the  special 
privilege  of  entering  the  Macareo  and  Pedernales  channels.     (Dip.  Cor.,  p.  10-11.) 

February  22,  1001,  Minister  Loomis  again  reported  to  the  Depart- 
ment of  State  that — 

There  is  no  doubt,  however,  that  tl^e  Venezuelan  Government  is  largely  in  the 
debt  of  the  company  in  a  financial  way,  as  the  result  of  losses  inflicted  upon  its  prop- 


REPORT  OF  ROBERT  C.  MORRIS.  245 

erty  and  the  interruption  of  its   Imsiness  by  the  arbitrary  seizure  of  steamers  from 
time  to  time.     *    *    * 

In  making  this  arrangement  the  claim  of  the  company  lor  a  hundred  thousand  or 
more  dollars  was  scaled  down  by  consent  to  forty  thousand  dollars  in  coimderatiun 
of  tlie  fact  that' its  coneeiision  should  he  extended  for  six  yearn.  The  extension  of  the 
concession  was  thought  to  be  of  very  great  value.  A  few  months  after  the  extension 
was  granted  the  value  of  the  whole  contract  was  destroyed  by  the  opening  of  the 
Macareo  channel  to  navigation.  This  was  done  without  prior  notice  to  the  com- 
pany.    *     *     *     (Dip.  Cor.,  p.  23-24.) 

December  14,  1900,  Mr.  Olcptt  wrote  to  the  British  minister  resi- 
dent in  Caracas  that — 

On  May  10,  1900,  I  concluded  an  arrangement  with  the  Venezuelan  Government 
for  the  settlement  of  our  claims,  which  amounted  to  over  £90,000.  The  Government 
agreed  to  satisfv  that  amount  in  the  following  manner: 

1.  Cash,  100,000  bolivars,  received  Ma v  10  last. 

******* 

3.  The  prolongation  for  six  years  of  the  contract  of  the  8tii  of  June,  1894. 
******* 

When  agreeing  to  the  above  settlement,  I  took  into  account  almost  entirely  the 
value  of  the  extension  for  six  years,  wdiich  the  minister  intrusted  with  these  negoti- 
ations frequentlv  stated  in  conversation  (before  my  agent  here,  Mr.  C.  Vicentini) 
was  "to  the  value  of  at  least  £100,000  alone."      (Dip.  Cor.,  p.  43.) 

Thus  the  contemporaneous  writings  on  the  subject  of  this  settlement, 
and  the  understanding  of  the  diplomatic  representatives  of  the  United 
States  seem  to  be  in  thorough  accord  as  to  the  fact  that  the  exten- 
sion for  six  years  was  expressl}-  made  in  part  payment  of  the  large 
claims  which  the  company  held  and  was  pressing  against  the  Gov- 
ernment at  the  time,  and  the  surrounding  circiunstances  but  corrob- 
orate such  understanding. 

In  view  of  this  state  of  facts,  the  suggestion  that  the  extension  was 
without  consideration,  a  mere  gratuit}",  and  consequently  to  be  with- 
drawn at  the  caprice  of  the  Government,  without  thereby  inctirring 
any  obligation  to  make  reparation  for  the  damages  occasioned  by  such 
annulment  of  a  valuable  property  right,  would  seem  to  require  no 
further  discussion. 

That  the  settlement  of  Ma}"  10, 1900,  as  evidenced  by  the  two  papers 
in  question,  was  made  by  competent  parties,  seems  not  to  l)e  denied  by 
the  honorable  agent  for  Venezuela,  nor  indeed  could  the  contrary  be 
maintained,  A  t  the  date  of  the  transaction  General  Castro  was  dictator, 
holding  in  his  hands  the  entire  governmental  power  of  the  Kepublic. 
The  "transaction"  in  question,  made  with  the  minister  of  the  interior, 
recites  that  it  was  made  by  the  authority  of  "the  Supreme  Chief  of  the 
Republic."  The  decree  of  October  5,  1900,  Avhich  annulled  tlie  decree 
of  Jidy  1,  1893,  prohibiting  "the  free  navigation  of  the  Macareo, 
Pedernales,  and  other  navigable  waterway's  of  the  River  Orinoco," 
was  pronuilgated  by  authority  of  "Cipriano  Castr-o,  general  in  chief 
of  the  army  of  Venezuela  and  Supreme  Cliief  of  the  Republic." 

At  the  session  of  the  first  National  Congress  held  thereafter,  it  was 
declared  that — 

(1 )  The  Citizen  General  Cipriano  Castro,  ('hief  and  Supreme  1  )ire<;tor  of  the  Liberal 
Reparing- Revolution,  deserves  tiie  gratitudes  of  the  country. 

(^2)  The  Citizen  General  Cipriano  C^astn^,  as  Supreme  Chief  of  the  Nation,  is 
creditor  of  public  confidence. 

And  it  was  decreed — 

(1 )  To  graut,  as  it  hereby  does,  its  sol(!mii  approval  of  all  and  each  <if  the  acts  that 
he  has  executed  as  Su])reme  Chief  of  the  l.ilieral  lleparing-IJevolutidn,  as  well  as 
Supreme  Chief  of  the  National  Executive. 


246  REPORT  OF  ROBERT  V.   MORRIS. 

(2)  This  resolution,  si<j;iu'(l  l>y  all  tin- lucinbcTs  of  the  National  Constituent  Con- 
firess,  shall  he  ]>resente<l  to  the  lionoral)le  (ieneral  Cipriano  Castro  by  a  special 
conunission. 

(Issued  in  the  LeLjislative  Federal  I'alace  at  Caracas,  on  the  6th  of  March,  1901, 
ninetieth  vear  of  independence  and  fortv-third  from  the  federation.  Ofiicial  Gazette 
of  March '14,  1901.) 

The  transaction,  iniludinj»\  as  it  did,  the  extension  of  the  contract 
of  navigation,  thus  received  the  contirniation  and  approval  of  the 
Kational  C'onjjfress,  as  did  also  the  siibseiiuent  opening  up  of  the  pro- 
hibited waterways  to  free  navigation. 

As  bearing  in  a  secondarv  manner  upon  the  relative  rights  of  the 
parties  to  the  navigation  contract,  and  also  to  the  transaction  of  May 
10,  1900,  reference  is  respectfully  made  to  the  law  of  Venezuela  relat- 
ing to  such  matters,  which,  while  stripped  of  binding  force  by  the 
terms  of  the  protocol  covering  submission  to  this  tribunal,  neverthe- 
less, may  at  least  ])e  referred  to  as  evidencing  the  duty  of  Venezuela 
in  such  respect. 

By  Title  IV,  section  1,  paragraph  3,  of  the  Venezuelan  civil  code  of 
1896,  it  is  provided  as  follows: 

Art.  1097.  Contracts  legally  framed  have  the  force  of  law  between  the  parties. 
They  can  not  be  revoked  except  by  mutual  (consent,  or  for  the  causes  authorized 
by  law. 

Art.  1098.  Contracts  must  be  executed  in  good  faith  and  bind  not  only  to  the 
fultillment  of  what  is  expressed  therein,  but  also  to  all  the  consequences  that  flow 
from  the  contracts  themselves,  according  to  equity,  usage,  or  law. 

Art.  1099.  In  contracts  which  have  for  object  the  transfer  of  property  or  some 
other  right,  the  property  or  right  is  transferred  as  a  consequence  of  the  consent 
legitimately  manifested,  and  the  subject  of  transfer  remains  at  the  risk  and  danger 
of  the  acquiring  party,  although  the  conveyance  should  not  have  been  effected. 
*  *  *  *  *  *  * 

Art.  1101.  It  is  presumed  that  every  one  has  contracted  for  himself  and  for  his 
heirs  and  assigns,  when  the  contrary  has  not  been  expressly  agreed,  or  when  it  does 
not  so  result  from  the  nature  of  the  contract. 

What  more  concise  statement  of  mutual  rights  and  obligations  of 
parties  to  bilateral  contracts  could  be  found  in  the  legislation  of  any 
nation,  or  in  the  principles  of  inttM-national  law  than  is  here  expressed? 

And  further,  with  respect  to  the  rescission  of  bilateral  contracts  in 
the  event  of  default  of  one  or  the  other  of  the  parties  it  is  declared  by 
article  1131  that — 

The  rescissory  condition  is  always  implied  in  bilateral  contracts  in  the  event  that 
one  of  the  contracting  parties  should  not  comply  with  his  obligation. 

In  this  event  the  contract  is  not  dissolved  by  the  default  itself  (deplenoderecho). 
The  party  in  respect  to  whom  the  obligation  has  not  been  fultilled  has  the  choice 
either  to  compel  the  other  party  to  carry  out  the  contra<.'t,  if  that  is  possible,  or  to 
demand  its  dissolution,  in  addition  to  the  payment  of  losses  and  damages  in  both 
cases. 

This  article  is  concordant  with  article  1184  of  the  Code  of  Napoleon, 
which  reads: 

The  rescissory  condition  is  alwaj^s  to  be  understood  in  sinalagmatic  contracts  in  the 
event  that  one  of  the  parties  should  not  fulfill  his  obligation. 

In  such  case  the  contract  is  not  dissolved  ipso  jure.  The  party  in  relation  to  whom 
the  agreement  has  not  been  fulfilled  may  elect  to  force  the  other  party  to  the  per- 
formance of  the  contract,  if  possible,  or  to  demand  the  rescission  of  same  and  the 
payment  of  damages  and  interest. 

The  annulment  of  the  contract  must  be  demanded  judicially  and  the  defendant 
may  be  granted  a  period  of  time  proportionate  to  the  circumstances. 


Report  of  Robert  c.  morris.  247 

And  article  1165  of  the  Italian  Civil  Code,  also  concordant,  reads: 

The  condition  of  rescission  is  always  to  be  understood  in  bilateral  contracts  in  the 
event  but  one  of  the  parties  should  not  meet  his  obligation. 

In  this  case  the  contract  is  not  dissolved  ipso  jure.  The  party  in  respect  to  whom 
the  obligation  has  not  been  fultilled  has  the  choice  between  forcing  the  other  party 
to  the  fulfillment  of  the  contract,  when  this  is  possible,  or  demanding  its  annulment, 
and  in  addition  compensation  for  damages  in  both  cases. 

The  dissolution  of  the  contract  must  be  demanded  judicially  and  a  period  may  be 
granted  to  the  obligee  according  to  the  circumstances. 

And  to  the  like  effect  are  the  concordant  articles  of  the  German 
Civil  Code,  article  160;  Spanish  Civil  Code,  article  1134;  Mexican 
Civil  Code,  article  1465-1406;  Holland  Civil  Code,  article  1302;  Chilean 
Civil  Code,  1489;  Uraguaj'an  Civil  (Jode,  article  1392;  Guatemalan 
Civil  Code,  article  1467;  Bolivian  Civil  Code,  article  1169. 

Each  and  every  one  of  the  civil  codes  founded  upon  the  same  system 
of  justice  and  its  administration  contemplate  and  re(juire  that  in  the 
event  of  a  default  on  the  part  of  one  party  to  a  bilateral  contract  the 
other  party  thereto  shall  resort  to  the  duly  constituted  tribunals  of  the 
country  for  the  appropriate  redress. 

The  common  law  of  England  is  not  otherwise. 

The  national  constitution  of  Venezuela  promulgated  in  1901,  by 
Title  III,  section  2,  article  17,  guarantees  "the  etfectiveness  of  the 
following  rights: 

^  H-  fr  ^  ir  *  i. 

"Second.  Property,  which  shall  ])e  subject  only  to  the  contributions  decreed  by 
legislative  authority,  in  accordance  with  this  constitution,  and  shall  l)e  taken  posses- 
sion of  for  works  of  public  utility  (only)  after  indemnification  and  condemnation 
proceedings." 

The  Executive  decree  of  December  10,  1892,  still  in  force,  pre- 
scribes the  elaborate  judicial  proceedings  incident  to  condemnation 
proceedings. 

It  being  once  conceded  that  a  contract  of  navigation  carrying  special 
rights  and  privileges  granted  upon  reserved  conditions  of  value  on 
account  of  which  the  granting  has  either  rendered  services  or  incurred 
any  debt  or  detriment  constitutes  a  property  right,  it  is  apparent  that 
the  grantor  can  not  even  under  the  local  law  in  force  in  Venezuela 
abrogate  the  same,  even  for  pvu'poses  of  public  policy  or  public  ben- 
efit, without  resorting  to  the  inethods  prescribed  by  law. 

It  is  suggested  in  the  answer  of  the  respondent  Government,  that, 
admitting  the  right  of  the  claimant  to  recover  with  respect  to  the 
services  n^ndcred  by  way  of  use  and  detention  of  steamers,  passao'es 
and  the  like,  that  such  recovery  can  only  l)e  in  accordance  with  tarifis 
or  schedules  agreed  upon  between  the  parties,  the  deduction  l)eing  as 
we  undei-stand  it  that  if  no  schedules  or  tariffs  had  been  actually  agi'eed 
upon  between  the  parties  in  advance  of  the  service,  or  perhaps  after- 
wards, that  no  r(H'o\('rv  could  be  had  in  this  case  therefor. 

In  response  to  this,  it  seems  necessary  but  to  say  that  the  services 
rendered  in  the  way  of  carrying  f I'eights  and  passengers  were  rendered 
upon  the  deliberate  orders  of  the  Govermnent  officials,  and  in  nearly 
all  in.stances  refer  to  tlie  terms  of  the  contract  providing  for  the  reduc- 
tion from  the  regular  tariffs  on  Government  account. 

The  regular  passtMigcr  and  freight  tariffs  were  public  and  notorious. 
They  were  oi'  should  have  tieen  as  well  known  to  the  (fOV<n-nment 
officials  as  they  were  to  the  pri\  ate  traveler.     The  den)and  for  ser\ic(^s 


248  REPORT  OF  ROBERT  C.  MORRIS. 

to  be  rendered  in  tlie  presence  of  .such  existinjj'  tarifl's  must  be  taken 
as  an  acquiescence  in  uw  rates  so  established. 

With  r(\spect  to  tlie  i)er  diem  i-liaro-es  for  the  detention  and  use  of 
company's  steamers,  it  is  to  be  noted  that  such  detentions  and  use 
arose  not  out  of  any  convention  l)etween  the  CJoverimient  otticials  and 
the  company's  agents,  but  were  brouylit  about  ]\y  the  ai't)itrary  orders 
of  and  superior  force  at  the  disposal  of  the  latter.  Such  detention  and 
use  of  the  steamers  disarranged  and  seriously  interfered  with  the 
orderly  prosecution  of  the  company's  business,  and  while  it  is  at  once 
conceded  that  the  claimant  is  only  entitled  to  recover  reasonable  com- 
pensation for  such  use,  it  is  submitted  tiiat  under  the  circumstances 
the  burden  is  upon  the  respondent  to  show  wherein  the  charges  made 
on  such  account  are  unreasonable.  In  the  accounts  rendered  to  and 
settled  by  the  Government  by  the  transaction  of  May  10,  1900,  similar 
charges  were  made  for  use  and  detention  of  the  same  or  similar 
steamers,  and  the  charges  as  then  made  were  accepted  and  settled  as 
above  stated  without  objection,  thus  evidencing  the  acquiescence  of 
the  Government  in  the  reasonableness  of  such  charges.  (In  this  con- 
nection see  original  Ex.  B.) 

Referring  to  the  item  in  the  claim  covering  imposts  illegally  col- 
lected and  to  the  reply  of  the  honorable  agent  of  Venezuela  to  the 
effect  that  as  said  items  include  payments  which  were  made  in 
the  years  1898,  1899,  and  1900,  they  were  consequently  included  in  the 
transaction  of  May  10, 1900,  and  therefore  should  be  rejected,  the  con- 
clusive effect  of  that  settlement  upon  all  claims  or  items  in  dispute  or 
which  might  at  the  date  mentioned  have  been  brought  in  dispute 
between  the  parties  is  admitted,  and  this  would  seem  to  put  an  end  to 
the  alleged  counterclaim  of  the  respondent. 

While  it  is  stated  in  the  caption  of  bill  (cuenta)  No.  14  that  such 
imposts  "from  the  1st  November,  1898,  to  the  31st  of  March,  1902, 
amount  in  the  aggregate  to  119,571.34,"  it  will  be  noted,  on  inspection 
of  the  detailed  accounts  and  accompanying  affidavits  that  relate  to  this 
item,  that  the  "illegal  charges"  therein  specitied  for  which  recovery 
is  here  sought  all  occurred  in  the  year  1902.  Being  subsequent  in  date 
to  the  settlement  of  May  10,  1902,  and  not  referred  to  in  either  paper 
writing  evidencing  the  same,  they  would  seem  not  to  have  been  affected 
by  it. 

It  is  further  objected  on  the  part  of  Venezuela  that  the  transfer  or 
assignment  from  the  Orinoco  Shipping  and  Trading  Company,  Lim- 
ited, to  the  claimant  company  is  invalid,  because  not  made  in  accord- 
ance with  the  terms  of  the  contract  itself  or  with  requirement  of  law. 
The  second  branch  of  this  objection  is  answered  by  the  protocol,' and 
has  been  referred  to  above.  The  onl}^  reference  in  the  contract  of 
June  8,  1894,  to  the  right  of  transfer  occurs  in  article  13  (Mem.,  p.  11), 
as  follows:' 

This  contract  *  *  *  may  be  transferred  by  the  contractor  to  another  person  or 
corporation  upon  previous  notice  to  the  Government.  The  transfer  shall  not  be  made 
to  any  foreign  government. 

By  the  "contractor"  so  referred  to  is  undoubtedly  meant  the  orig- 
inal concessionaire,  P^Uis  Grell,  who,  after  giving  previous  notice  to 
the  Government,  transferred  the  contract  to  the  Orinoco  Shipping  and 
Trading  Company,  Limited.  Subject  only  to  the  restriction  that  the 
contract  should  not  be  transferred  to  any  foreign  government,  it  would 
seem  that  this  transferee  might  make  such  further  transfers  as  it  might 


REPORT  OF  ROBERT  C.  MORRIS.  249 

think  best  without  formally  giving  notice  in  advance;  but,  if  the  Com- 
mission should  think  otherwise,  it  is  to  be  observed  that  this  require- 
ment as  to  notice  of  transfer  relates  only  to  the  navigation  concession 
itself,  which,  it  is  above  contended,  was  annulled  by  the  decree  of 
October  5,  1900,  and  the  extension  of  May  10,  IKOO,  was  further 
especially  annulled  by  the  decree  of  December  14,  1001,  thus  leaving, 
at  least  on  the  latter  date,  nothiig  of  the  concession  itself  in  existence, 
while  the  assignment  from  the  first-named  company  to  the  claimant 
company  was  only  executed  oh  April  1, 1902.  It  would  seem,  there- 
fore, that  this  ol)]ection  is  without  force,  as  it  is  certain  that  as  the 
franchise  of  navigation  from  the  standpoint  of  the  Venezuelan  Gov- 
ernment did  not  and  could  not  pass,  the  condition  as  to  previous  notice 
had  no  bearing. 

The  requirement  as  to  notice  could  have  no  etfect  upon  the  assign- 
ment from  one  compan}' to  the  other  of  assets,  including  book  accounts 
and  claims. 

In  regard  to  the  damages  for  destruction  of  the  concession  contract, 
estimated  at  $82,432.78  per  annum,  it  is  objected  by  the  respondent 
that  the  estimate  "  is  entirely  arbitrary."  It  would  seem  to  be  suffi- 
cient in  replv  to  refer  to  the  fact  stated  in  the  former  brief  that  the 
estimate  is  based  upon  the  settlement  of  May  10,  1900,  when  the  min- 
ister for  foreign  affairs,  acting  in  the  interest  of  the  Republic  and 
serving  its  ends,  put  the  Government's  valuation  upon  the  extension  of 
the  concession  and  the  company  accepted  it  bv  canceling  admitted 
debts  for  the  total  amount  thereof.  It  is  also  substantiated  by  the 
demonstrated  earning  capacity  of  the  franchise  or  concession  even 
under  adverse  circumstances. 

When  a  wanton  wrong  has  been  committed  by  one  party  upon 
another,  legal  tribunals  do  not  aim  to  minimize  the  damages  which  the 
injured  party  has  suffered.  If  difficulties  lie  in  the  way  of  ascertain- 
ing with  exactitude  the  amount  of  injur}',  they  should  be  resolved 
against  the  wrongdoer  and  in  favor  of  the  person  wronged.  If  the 
wrong  had  not  been  committed,  a  mathematical  computation  of  the 
injury  would  not  have  become  necessary.  It  may  well  be  that  the 
value  of  the  concession  is  even  greater  than  is  assumed  in  the  above 
estimates.  A  monopoh'  ordinarily  appreciates  as  business  grows  in 
importance  and  extent. 

The  amount  of  capital  invested  in  this  ])usiness  by  the  compan}^  ma}^ 
be,  as  is  stated  in  the  answer,  of  no  concern  to  Venezuela,  she  not 
having  overseen  nor  advised  the  investment;  but  it  is  to  be  borne  in 
mind  that  this  large  capital  was  outlaid  in  preparing  for  and  conduct- 
ing tlu;  company's  business  in  a  proper  manner  and  as  the  company 
understood  it  in  accordance  with  the  r(>quirements  of  the  contract. 
'Hie  amount  of  the  investment  is  given  not  as  a  rule  by  which  to 
measure  the  award  which  mav  be  given  in  favor  of  claimant,  but 
merely  as  an  element  to  be  taken  into  consideration  in  estimating  the 
damages  which  claimant  suffered.  With  the  destruction  of  the  exclu- 
sive right  to  prosecute  free  from  competition  a  lucrative  trade,  the 
capital  invested  therein  largely  and  necessarily  depreciated  in  value. 
What  is  meant  by  the  statement  in  the  answer  to  the  effect  that  this 
investment  of  capital  only  took  place  in  1900  "when  the  contract  had 
already  existed  for  six  years,  since  1894;'"  and  ''that  during  all  that 
previous  time  the  contracting  party  had  not  fulfilled  his  obligations,'' 
is  not  understood,  as  there  does  not  appear  to  be  any  foundation  in 


'250  REPORT  OK  ROHKHT  C.  MORRIS. 

the  docuinoiils  heroU)t"oro  submilliHl  to  support  such  a  tlcduction,  and 
the  case  sliows  that  the,  invostinoiit  was  made  as  occasion  required, 
nuu'h  of  the  amount  havinj^*  been  invested  in  the  pui'chaseof  the  "'Red 
Star  Company'"  and  the  actpiisition  of  the  Grell  phint,  includino'  tlie 
contract  concession  of  flune  8,  ISD-i. 

As  the  lionorahk^  ao'ent  for  Vcnezuehi  in  the  answer  of  the  respond- 
ent lias  seen  tit  to  refer  to  the  fact  that  the  Government  has  tiled  a 
suit  in  the  local  courts  aoainst  this  clainumt  to  recover  for  dama^c^s 
alleo-ed  to  have  been  sutt'ered  l)v  it  from  the  alleoed  faihu'es  on  the 
part  of  the  claimant  to  fultill  its  ol)li^ations  undei'  this  contract,  it  may 
not  be  amiss,  by  way  of  showing  the  value  which  the  Government 
itself  even  now'  attaches  to  the  business  connected  with  the  contract, 
to  quote  the  following  extract  from  the  declaration  tiled  in  that 
suit,  viz: 

The  losses  and  damages  wliicli  the  defendant  company  suffered  from  the  non- 
execution  of  the  fundamental  contracts  are  computed  at  eighteen  million  bolivars 
(Bs.  18,000,000),  calculatinu:  at  lino  milJion  bolirars  per  annum,  the  returns  which 
the  (iovernment  has  failed  (will  fail)  to  receive,  in  each  year,  for  customs  revenues 
(if  the  variovis  ports  which  should  have  been  joined  hy  the  line  of  steamers  which 
the  company  bound  itself  to  establish,  and  this  during  nine  consecutive  years;  and 
in  addition  lo  this  sum,  nine  hundred  thousand  bolivars  (Bs.  900,000)  in  which  are 
computed  the  sealed  paper  and  stamps  which  the  National  Government  has  failed 
to  sell  for  the  clearance  of  vessels,  shipments  of  merchandise,  exportation  of  products, 
and  coasting  trade  at  those  various  points  of  the  itinerary  of  the  line,  during  the  nine 
years  that  have  been  spoken  of,  calculating  the  same  at  one  hundred  thousand 
bolivars  i)er  annum. 

Without  at  all  touching-  upon  the  merits  of  that  proceeding,  it  would 
seem  to  be  in  good  order  to  remark  that,  when  considered  in  the  light 
of  such  an  estimate  and  of  the  amount  of  business  which  must  neces- 
sarily be  done  by  the  company  to  produce  such  revenues,  and  of  the 
freights  to  be  derived  therefrom,  the  estimate  of  value  placed  upon 
the  amiulled  contract  is  most  modest. 

Referring  to  the  demand  of  the  honorable  agent  for  Venezuela  for 
the  production  of  the  original  documents  and  vouchers  relating  to  this 
claim,  copies  of  which  have  heretofore  been  submitted  to  the  Com- 
mission. 1  need  only  say  that  all  of  such  original  documents  are  at  this 
moment  in  the  custody  of  the  United  States  legation  in  Caracas  and 
can  thei'e  be  examined  by  the  honora])le  agent  for  Venezuela  at  his 
convenience.  These  papers  are  also  subject  to  the  orders  of  this 
Commission,  and  the  agent  for  the  United  States  will  cheerfully  com- 
ply with  an}'  order  that  the  Commission  may  make  in  regard  thereto. 

It  may  I)e  noted  that  although  the  contract  concession  of  June  S, 
1894,  was  broken  by  the  decree  of  October  5,  1900,  the  claimant's 
predecessor,  so  far  as  performance  on  its  part  was  concei-ned,  elected 
to  consider  it  still  in  force  until  it  sufl'ered  an  actual  damage  by  the 
passage  of  an  opposition  ship  laden  with  cargo  through  the  Macareo 
channel.  Such  actual  damage  does  not  appear  to  have  occurred  until 
on  or  al)out  August  2,  1902  (Dip.  Cor.,  91  et  seq.  and  certificate  of 
IIar])or  Master  Saunders).  Since  that  date  the  passage  of  competing 
ships  laden  with  cargo  and  sailing  from  a  foreign  port  through  the 
Macareo  or  Pedernales  channels  has  occurred  frequently,  and  this,  too, 
despite  the  proclamation  on  June  28,  1902,  of  the  domestic  blockade 
of  the  Oi'inoco  River  ports.  (Harbor  masters'  certificates.)  It  may 
be,  considering  that  the  claimant's  predecessor  practically  enjoyed  the 
exclusive  rioht  of  naviiration  to  which  it  was  entitled  under  said  con- 


REPORT  OF   ROBERT  C.  MORRIS.  251 

tract,  that  the  practical  breach  of  the  contract  should  be  declared  to 
have  occurred  only  on  Auoust  2,  1902,  when  tlie  Eesciie made  her  tir.st 
vo^^age  carryino-  freights  which  properly  should  have  been  carried  by 
the  Orinoco"^Steam.ship  Company.  If  so,  then,  in  coniputino- damages 
for  the  breach  of  the  concession,  the  unexpired  term  should  perhaps 
be  computed  from  said  date  rather  than  fi-oni  October  5, 1900  as  claimed. 
It  would  seem  from  the  proofs  submitted  that  the  claimant  and  its 
predecessor  elected  to  consider  the  concession  in  force  until  prac-tical 
damage  occurred. 

NEUTEALITY. 

In  the  answer  of  the  respondent  Government  it  is  stated  that  it — 

wishes  to  bring  to  the  knowledge  of  the  honorable  Mixed  Commission  that  the 
Orinoco  Shipping  and  Trading  Company,  Limited,  has  taken  part  in  the  internal 
affairs  of  the  nation,  as  is  proven  by  the  evidence  which  I  produce,  together  with 
sundry  publications. 

The  so-called  proof  consists  of  some  eleven  ex  parte  affidavits,  all 
taken  since  the  date  of  filing  the  claim  before  this  tribunal.  Although 
all  of  these  affidavits  were  taken  either  in  Caracas  or  at  Port  of  Spain, 
in  Trinidad,  at  both  of  Avhich  places  the  claimant  was  represented  by 
officers  or  agents,  no  notice  of  intention  to  take  the  same  was  given  to 
the  agent  for  the  United  States  nor  to  any  of  the  officers  or  agents  of 
the  claimant,  and  no  opportunity  was  afforded  to  cross-examine  the 
affiants. 

Each  of  the  affiants  is  represented  as  being  of  Ciudad  Bolivar,  but 
temporarii}^  resident  in  the  places  in  which  the  respective  affidavits 
were  made,  and  no  effort  is  made  in  the  affidavits  to  afford  any  clue  to 
their  present  whereabouts. 

In  response  to  the  first  set  of  inquiries  of  the  honorable  agent  for 
Venezuela,  Timoteo  Carvajal  states  that  in  May,  1902,  he  found  "at 
the  island  of  Trinidad  all  the  larger  steamers  belonging  to  the  Orinoco 
Steamship  Company,  and  /  was  told  in  the  latter  port,"  etc.  Also 
that- 
All  that  I  have  stated  is  known  to  me,  as  well  because  I  have  been  an  eyewitness 
to  many  of  the  events  to  which  1  liave  referred  as  becnuse^  those  which  I  did  not  witness 
have  been  communiculed  to  me  by  persons  rvho  merit  entire  Jaith. 

Alejandro  Plaza  Ponte  states  that  he  was  an  eyewitness  to  the  greater 
part  of  the  events  to  which  he  refers:  "And  as  to  those  which  I  did 
not  witness,  I  know  from  correspondence  which  I  have  received  from 
honorable  persons  who  merit  my  entire  confidence." 

Luis  Felipe  Rojas  Fernandez  states  that  he  founds  his  deposition  "on 
the  fact  that  I  was  either  an  eyewitness  to  the  events  and  incidents  to 
which  1  refer  in  same,  or  else  they  have  been  related  to  me  by  other 
eyewitnesses  who  arc  worthy  of  belief." 

As  none  of  these  gentlemen  takes  any  pains  to  distinguish  the  occur- 
rences of  which  he  was  an  eyewitness  from  those  wliich  were  merely 
reported  to  him  by  others,  it  would  seem  to  place  the  whole  of  each 
of  the  affidavits,  even  if  otherwise  competent  evidence,  in  the  category 
of  the  baldest  hearsay. 

In  the  caption  of  the  depositions  the  honorable  attorney -general  of 
the  nation,  who  is  also  the  agent  for  Venezuela  before  this  Connnis- 
sion,  states  that  he  wishes  "to  prove  certain  acts  ascril)ed  to  the  for- 
eign concern  styled  'the  Orinoco  Steamship  Company,'  which  A\as 


252  REVORT  OF  ROBERT  0.  MORRIS. 

fornuuly  ciilUnl  'tho  Orinoco  Slii[)i)ino-  uiul  'i'radiuo-  Company, 
Limited,'  acts  inM-formcd  ;i»;!rmst  tlio  present  polilical  order  and  in 
o]>en  contravention  to  all  the  duties  of  neutrality  which  foreigners 
should  observe  during  civil  wars/' 

As  the  claims  of  tlie  company  against  Venezuela  are  entirely  com- 
])osed  (utiier  of  items  covering  services  rendered  to  tlie  Government  or 
its  ollii'ials,  or  of  items  of  damages  for  injuries  to  pro])ei'ty,  or  the 
deliberate  breach  of  a  concession  of  navigation,  and  contains  no  item 
in  the  remotest  degree  connected  with  any  supposed  breach  of  the  duty 
of  a  neutral,  it  is  somewhat  difficult  to  perceive  the  exact  ])earing  of 
such  proofs  in  this  case. 

The  specific  acts  of  unneutral  conduct  sought  to  be  proved  seem  to  be: 

First.  That  in  March  and  April,  1902,  the  company  withdrew  from 
Ciudad  Bolivar  all  the  larger  steamers  belonging  to  it  under  the  pre- 
text that  the}"  were  to  be  repaired  at  Trinidad,  thereby  occasioning 
gravi^  injuries  to  the  Government  by  reason  of  preventing  the  timely 
niol)i ligation  of  the  forces  that  were  operating  against  the  revolution 
st3ded  '■•  Libertadora." 

Second.  That  the  steamers  of  the  coinpan}"  after  the  blockade  had 
been  declared  renewed  their  trips  to  Ciudad  Bolivar  Hying  a  foreign 
Hag,  and  carried  to  that  port  on  various  occasions  iunmunition  and  war 
materials  intended  for  the  said  revolution. 

Third.  That  the  steamers  of  the  company  accepted  without  protest 
and  carried  on  board  tiscals  (customs  agents)  appointed  by  Ramon  C. 
Farreras,  chief  of  the  revolutionary  movement  at  Ciudad  Bolivar. 

Fourth.  That  in  the  month  of  March,  1903,  the  company's  steamer 
Apure^  and  on  the  13th  of  May,  1903,  the  company's  steamer  Guanare 
carried  munitions  of  war  to  Ciudad  Bolivar  and  that  such  supplies 
passed  into  the  hands  of  the  revolutionists. 

Assuming  each  and  every  one  of  these  accusations  to  have  been  fully 
and  satisfactorily  ])roved  and  that  the  facts  were  material  to  an}^  issue 
raised  by  this  claim,  stdl  it  is  submitted  the  respondent  Government 
has  fallen  far  short  of  establishing  any  breach  of  neutral  duty  on  the 
part  of  the  claimant  or  its  assignor. 

Bearing  in  mind  that  the  claimant  company  and  its  predecessor  in 
interest  were  citizens  of  a  foreign  state  engaged  in  the  business  of  a 
common  carrier  by  ships  plying  between  an  P]nglish  crown  colony 
and  ports  in  Venezuela,  owing  no  allegiance  to  the  Government  of 
Venezuela  and  no  duty  save  such  as  the  laws  of  nations  and  of  the 
ports  at  which  their  vessels  called  imposed  upon  them,  it  is  necessary 
to  set  up  and  prove  some  specific  breach  of  the  law  of  nations  before 
a  breach  of  neutrality  is  made  out. 

With  respect  to  the  alleged  withdraw^al  of  the  ships  from  the  Ori- 
noco at  a  time  when  the  Government  oflicers  desired  to  use  them  for 
mobilizing  troops,  it  is  sufficient  to  remark  that  breaches  of  neutrality 
have  usually  been  considered  to  rest  in  positive  acts,  not  in  negative 
actions.  To  have  placed  ships  in  the  service  of  the  revolutionists,  by 
charter  or  otherwise,  while  not  at  all  amounting  to  a  breach  of  neutral- 
ity, would  nevertheless  have  rendered  them  liable  to  capture  and  con- 
demnation, but  there  was  no  contract  or  charter  relation  between  the 
company  and  the  Government  of  Venezuela  which  entitled  the  latter 
to  use  the  company's  merchant  ships  as  transports,  and,  if  for  the  pur- 
pose of  preserving  them  from  the  fate  of  the  Nutrias  and  Vencedor 
they  were  withdrawn  from  harm's  way,  such  precautionary  measures 


REPORT  OF  ROBERT  C.  MORRIS.  253 

would  havdl}'  seem  to  resemble  in  a  remote  degree  the  acts  necessary 
to  constitute  a  breach  of  neutrality. 

In  connection  with  the  charge  of  removing  tlie  steamers  from  the 
river,  reference  is  made  to  the  copies  of  protests  and  correspondence 
appearing  in  the  volume  of  diplomatic  correspondence  at  pages  12  to 
23,  inclusive;  also  pages  69  and  7.5  to  83,  inclusive. 

Charges  2  and  i  may  be  considered  and  answered  together,  the  lat- 
ter appearing  to  be  merely  a  repetition  of  the  former  in  more  specitic 
form. 

That  the  company's  steamers,  flying  the  American  flag  as  an  evidence 
of  their  ownership  and  right  of  protection  under  consular  registrations 
subsequent  to  June  28,  1901  (Venezuelan  blockade),  resumed  their 
trips  to  and  from  Ciudad  Bolivar,  carrying  cargo  whenever  the  circum- 
stances would  permit,  is  not  denied. 

It  is  fundamental  that  blockades  to  be  respected  must  be  effective 
and  continuous!}"  maintained.  That  the  blockade  in  question  was  not 
being  etiectively  maintained  on  the  occasion  of  the  trips  complained  of, 
all  of  which  so  far  as  is  now  known  were  made  after  the  assault  upon 
the  Venezuelan  navy  by  allied  powers,  is  evidenced  by  the  fact  that 
the  voyages  were  made  without  sighting  a  Venezuelan  national  force 
of  any  kind.  In  this  connection  it  is  notorious  that  from  the  31st  of 
*May,"^  1902,  until  the  21st  of  July,  1903,  Ciudad  Bolivar  was  in  the 
effective  possession  of  the  so-called  revolutionary  forces,  who  had  there 
set  up  a  de  facto  government.  Because  of  this  fact  the  United  States 
of  America  in  common  with  other  powers  refused  to  credit  a  decree  of 
the  Venezuelan  Government  pi'ohibiting  communication  with  that  port, 
unless  backed  by  sufiicient  force,  as  being  an  invasion  of  the  law  of 
blockade. 

As  to  the  character  of  the  revolutionaries,  whether  belligerents  or 
not,  opinions  may  differ,  but  it  is  said  by  a  publicist  of  high  repute  in 
discussing  belligerency  that,  while  a  foreign  State  evidencing  the 
recognition  of  belligerency  must  issue  a  formal  notification  of  some 
kind,  the  most  appropriate  perhaps  being  a  declaration  of  neutrality— 

a  parent  State  stands  in  a  different  position.  It  can  not  be  expected  to  volunteer 
direct  recognition.  The  relation  in  which  it  c-onceives  itself  to  stand  to  the  insur- 
gents must  he  inferred  from  its  acts.  Hence  the  question  arises,  what  acts  are  suffi- 
cient to  constitute  indirect  recognition?  There  can  be  no  doubt  as  to  the  effect  of 
acts,  such  «.s  ciipture  of  vessels  for'breacJt.  of  bloc  hade  or  carriage  of  articles  contraband  of 
war,  which  affect  the  neutral  directly,  and  in  a  manner  permissible  only  in  time 
of  war.     (Hall's  Int.  Law,  sec.  5,  p.  38.) 

At  page  82  of  the  same  work  the  author,  after  distinguishing 
between  the  rules  governing  the  relations  of  nations  as  ])elligerent 
and  neutral  and  those  governing  the  relations  between  a  belligerent 
nation  and  a  neutral  individual,  says: 

The  only  duty  of  the  individual  is  to  his  own  sovereign;  and  so  distinctly  is  this 
the  case  that  acts  done  even  with  intent  to  injure  a  foreign  State  are  only  wrong  in 
so  far  as  they  compromise  the  natiou  of  whicli  the  individual  is  a  nu'iid)er.     *     *     * 

Skc.  2r>.  *  *  *  It  has  been,  and  still  is,  usual  (for  pul)]icists)  to  confuse  neutral 
States  and  individuals  in  a  common  relation  towards  belligerent  States;  and  in  losing 
sight  of  the  sound  basis  of  the  established  practice  they  have  necessarily  failed  to 
indicate  any  clear  boundary  of  state  responsibility.  This  want  of  precision  is  Ixjth 
theoretically  unfortunate  and  not  altogether  without  practical  importance.  For  it 
has  enabled  governments  from  time  to  tinn'  to  ])ut  forward  i)n  tentions,  whicli,  though 
they  have  never  been  admitteil  liy  neutral  States  and  have  never  been  carried  into 
effect,  can  not  be  often  made  without  endangering  the  stability  <jf  the  principles 
Ihey  attack. 


254  RErOKT  (»K  ROBERT  C.   MORRIS. 

It  will  be  found,  whetluM-  by  (.•ousnlting  nsajie  or  treaties,  md  tlud  trade  in  articles 
coutmbond  of  var  is  a  breach  of  neutraliti/,  but  that  the  j)ersont<  engaged  in  it  are  exposed 
to  the  coDjiscation  of  their  goods. 

*In  response  to  a  suggestion  from  England  in  1793,  Mr.  Jeflferson 

replied: 

Onr  citizens  have  always  been  free  to  make,  vend,  and  export  arms.  It  is  the 
constant  occupation  and  livelihood  of  some  of  them.  To  suppress  their  callinp;s,  the 
only  means  perliajis  of  their  subsistence,  because  a  war  exists  in  foreign  and  distant 
countries,  in  whii'h  they  have  no  concern,  would  scarcely  be  ex{)ected.  It  would 
be  hard  in  princi})le  and  impossible  in  practice.  The  law  of  nations,  therefore, 
respecting  the  rights  of  those  at  peace  does  not  recjuire  from  them  such  an  internal 
derangement  of  their  occupations. 

And  again  in  1855,  President  Pierce,  speaking  of  contraband  of  war, 
said — 

that  the  laws  of  the  United  States  do  not  forbid  their  citizens  to  sell  to  either  of  the 
belligerent  powers  articles  contral)and  of  war,  or  take  munitions  of  war  or  soldiers 
on  board  their  private  ships  for  transportation;  and  although  in  so  doing  the  indi- 
vidual citizen  exposes  his  property  or  person  to  some  of  the  hazards  of  war  his  acts 
do  not  involve  any  breach  of  national  neutrality,  nor  of  themselves  implicate  the 
Government.     (Hall  Int.  Law,  pp.  83-84.) 

The  carriage  of  contraband  in  neutral  bottoms  in  event  of  capture 
subjects  the  contraband  alone  to  confiscation  and  not  the  ship.  (Hall, 
p.  692.) 

As  a  consequence  of  the  doctrine  that  the  goods  are  seized  because  of  their  noxious 
qualities,  and  not  because  of  the  act  of  the  person  carrying  them,  it  is  held  that  so 
soon  as  the  forbidden  merchandise  is  deposited  the  liability  which  is  its  outgrowth  is 
deposited  also,  and  that  neither  the  proceeds  of  its  sales  can  be  touched  on  the  return 
voyage  nor  can  the  vessel,  although  previously  affected  by  her  contents,  be  brought 
in  "for  adjudication.  (The  Imina,  3  Robinson's  Rep.,  168;  Hall  Int.  Law,  p.  696,  and 
note;  Wheaton  (Laurence),  Int.  Law,  p.  819,  etseq. ) 

Nor  does  the  law  of  blockade  or  intercourse  with  an  interdicted  port 
or  place  difier  in  civil  w^ar  from  what  it  is  in  a  foreign  war.  (Law- 
rence's Wheaton  (2d  ed.,  1863,  p.  846,  note.) 

So  it  would  seem  that  even  if  the  companies  or  either  of  them  in  the 
ordinar V  course  of  its  business  as  a  common  carrier  received  and  trans- 
ported to  a  port  in  possession  of  a  de  facto  government  contraband  of 
war,  it  did  not  thereby  commit  an}^  breach  of  neutral  dut}^,  and  the 
vo3^ages  having  long  since  ended,  and  the  contraband,  if  any  such  ever 
was  carried,  having  long  since  been  deposited,  all  liability,  which  at  no 
time  amounted  to  more  than  a  possible  confiscation  of  the  contraband 
itself,  has  long  since  passed  away. 

The  claimant,  acting  in  strict  accord  with  the  law  of  nations  respect- 
ing the  rights  and  duties  of  neutrals  engaged  in  trade  with  the  peoples 
of  a  foreign  port,  continued  to  transport  to  such  port  whenever  its 
approaches  were  free  from  the  danger  incident  to  the  presence  of  an 
armed  force,  such  merchandise  as  was  offered  it  for  carriage.  If  any 
arms  or  munitions  of  war  were  carried,  it  does  not  appear  that  any 
officer  of  the  company  was  aware  of  the  contents  of  the  packages,  and 
if  such  knowledge  were  shown,  it  w^ould  only  be  necessary  to  say  that 
the  company  had  the  legal  right  to  transport  such  materials,  if  it  chose 
to  assume  the  risk  of  detention  incident  to  possible  capture  and  the 
subsequent  confiscation  of  the  contraband  of  war. 

Repeating  the  incident  of  the  capture  of  dispatches  in  1901,  addressed 
bj^  GenerarRoiando  to  (Jolonel  Cotua  and  others  and  carried  on  the 
steamer  Jjollvar  ])y  the  second  captain.  Mi'.  Rodriguez,  it  seems  only 
necessary  to  say  that  such  carriage  was  in  direct  contravention  of  rules 


REPORT  OF  ROBERT  C.  MORRIS.  255 

17,  18,  and  19  of  the  company's  manual  for  the  government  of  its 
employees  (copy  herewith),  and  that  upon  the  arrival  of  Mr.  Rodriguez 
in  Trinidad  he  was  at  once  discharged  for  his  breach  and  President 
Castro  was  f ormall}^  notified  of  the  fact,  the  letter  of  notification  being 
published,  presumably  with  his  acquiescence,  in  the  public  prints  of 
Caracas  at  the  time.     (Copy  of  rules  filed  with  Commission.) 

As  to  the  charge  of  receiving  on  board  of  the  steamers  without  pro- 
test the  fiscals  (treasur}^  agents)  appointed  by  General  Farreras  at 
Ciudad  Bolivar,  it  need  only  he,  said  that  the  company  was  dealing 
with  a  de  facto  government  at  that  port.  The  laws  of  Venezuela 
required  the  steamers  plying  in  the  Orinoco  to  receive  and  carry  such 
fiscals.  When  they  appeared  with  the  credentials  of  the  de  facto  gov- 
ernment, it  was  not  for  the  compan}^  to  question  the  sufiiciency  or  regu- 
larity of  their  appointment  any  more  than  it  is  the  duty  or  business  of 
a  captain  of  a  ship  upon  entering  a  customs  port  to  question  the  regu- 
larity of  the  appointment  of  the  health  or  customs  officer  who,  properly 
credential ed,  boards  his  vessel  in  ordinary  course. 

The  instructive  note  of  Mr.  Lawrence  found  at  page  526  of  Lau- 
rence's Wheaton  (2d  ed. ,  1863)  is  so  directly  in  point  that  I  may  be 
pardoned  for  quoting  from  it  in  extenso: 

Not  only  are  private  individuals  exempt  from  penalties  for  acquiescing  in  a  gov- 
ernment de  facto,  which  exercises  undisputed  sway,  and  when  all  protection  is 
withdrawn,  from  necessity  or  otherwise,  by  the  previous  government;  but  it  is  ol>vi- 
ous  that  some  police  regulations  and  the  administration  of  justice  in  every  country, 
even  during  a  revolutionary  struggle,  are  essential  to  prevent  anarchy  and  its  attend- 
ant consequences.  As  Grotius  said:  "The  acts  of  sovereignty  which  a  usurper 
exercises,  even  before  he  has  acquired  an  esta1)lished  right  by  long  possession  or  con- 
vention, and  while  his  possessory  title  is  unjust,  may  be  obligatory,  not  in  virtue  of 
his  right — for  he  has  none — but  because  there  is  every  reason  to  suppose  that  the  legit- 
imate sovereign,  whether  people,  king,  or  senate,  would  prefer  that  the  usurper 
should  be  temporarily  obeyed,  than  that  the  administration  of  the  laws  and  jus- 
tice should  be  interrupted  and  the  State  exposed  to  all  the  disorders  of  anarchy." 
(De  Jur.  Bel.  ac  Pac.  lib.  i.  cap.  4,  §15. )  No  exception  was  ever  taken  by  the  most 
scrupulous  loyalist  to  the  acceptance  by  Sir  Matthew  Hale  of  a  seat  on  Cromwell's 
bench  of  judges;  nor  did  it  operate  as  a  disqualification  of  his  holding  the  same 
position  on  the  return  of  Charles  II. 

(See  also  the  case  of  the  Mo7itijo,  2  Moore  Int.  Arb.,  p.  1'132  et  seq. 
Also  11  Opinions  Atty.  Genl.  U.  S.,  452,  cited  in  case  of  United 
States  V.  Trumbull,  48  Fed.  Rep.,  99;  s.  c.  Scotts  Cases  on  Interna- 
tional Law,  p.  731.  Also  the  article  on  "Neutralitv,"  chap.  21  of 
Wharton's  Digest,  vol.  3,  p.  497,  sees.  389,  390,  and  391.) 

In  conclusion,  I  repeat  that,  irrespective  of  the  law  on  the  subject, 
the  suggested  breaches  of  neutrality  have  no  bearing  whatever  upon 
this  claim,  as  no  recovery  is  sought  for  any  loss  or  damage  suffered  as 
tlie  result  of  any  supposed  breach  of  neutrality,  nor  is  it  desired  to 
enforce  any  contract  made  under  conditions  of  hostility  to  the  General 
(government;  nor  is  it  perceived  how  Venezuela  can  expect  to  escape 
a  contract  debt  or  other  liability  by  showing  that  after  the  de))t  had 
acci'ued  the  d('))tor  had  carried  on  trade  with  her  enemies. 
Respectfully  submitted. 

Robert  C.  Morris, 
A(/<nt  of  the  United  States. 
F.  D.  McKenney, 
Of  anmsel  for  Claimant  Company.  ( 


256  KEPOKT    OK    ROBERT    C.    MORRlfi. 

The  United  States  and  Venezuelan  Claims  Connnission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  or  America,  on  behalf  of  | 

the  Orinoco  Steamship  Compan}',  claimant,        Id-iim  No   19 

The  Republic  of  Venezuela.  I 

Bainbridge,  Commissioner: 

Inasmuch  as,  by  reason  of  a  disagreement  between  the  Commission- 
ers, this  claim  is  to  be  submitted  to  the  umpire,  to  whom  in  such  case 
the  protocol  exclusively  confides  its  decision,  the  Commissioner  on  the 
part  of  the  United  States  limits  himself  to  the  consideration  of  certain 
questions  which  have  been  raised  by  the  respondent  Government 
atiecting  the  competency  of  the  Commission  to  determine  this  very 
important  claim. 

It  may  be  presumed  that  in  framing  the  convention  establishing  the 
Conuuission,  the  high  contracting  parties  had  clearly  in  view  the  scope 
of  the  jurisdiction  to  be  conferred  upon  it,  and  deliberately  chose,  in 
order  to  define  that  scope,  the  words  most  appropriate  to  that  end.^ 

Article  1  of  the  protocol  defines  the  jurisdiction  of  the  Commission 
in  the  following  terms: 

All  claims  owned  by  citizens  of  the  United  States  of  America  ao:ainst  the  Republic 
of  Venezuela  which  have  not  been  settled  by  diplomatic  agreement  or  by  arbitration 
between  the  two  Governments,  and  which  shall  have  been  presented  to  the  Commis- 
sion hereinafter  named  by  the  Department  of  State  of  the  United  States  or  its  legation 
at  Caracas,  shall  be  examined  and  decided  l>y  a  mixed  commission,  which  shall  sit 
at  Caracas,  and  which  shall  consist  of  two  members,  one  of  whom  is  to  be  appointed 
by  the  President  of  the  United  States  and  the  other  by  the  President  of  Venezuela. 
It  is  agreed  that  an  umpire  may  be  named  by  the  Queen  of  the  Netherlands. 

The  protocol  was  signed  at  Washington  on  behalf  of  the  respective 
Governments  on  the  17th  of  February,  1903.  In  view  of  the  explicit 
language  of  the  article  quoted  above,  it  would  seem  too  clear  for  argu- 
ment that  the  contracting  parties  contemplated  and  agreed  to  the 
submission  to  this  tribunal  of  all  claims,  not  theretofore  settled  l)y 
diplomatic  agreement  or  by  arbitration,  which  were  on  that  date  owned 
b}^  citizens  of  the  United  States  against  the  Repul)lic  of  Venezuela. 

The  Orinoco  Steamship  Company  is  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  State  of  New  Jersey. 
It  is  the  successor  in  interest,  by  deed  of  assignment  dated  April  1, 
1902,  of  the  Orinoco  Shipping  and  Trading  Company,  Limited,  a 
company  limited  by  shares,  organized  under  the  English  companies 
acts  of  1862  to  1893,  and  duly  registered  in  the  oflice  of  the  register  of 
joint  stock  companies,  London,  England,  on  the  11th  day  of  July, 
1898.  Among  other  of  the  assets  transferred  by  the  said  deed  of 
assignment  were  "all  franchises,  concessions,  grants  made  in  favor  of 
the  Orinoco  Shipping  and  Trading  Company,  Limited,  by  the  Republic 
of  Venezuela,  particularly  the  concession  granted  by  the  Government 
of  Venezuela  for  navigation  by  steamer  from  Ciudad  Bolivar  to  Mara- 
caibo,  originally  made  by  the  national  executive  with  Manuel  Antonio 
Sanchez,  and  approved  by  Congress  on  the  8th  day  of  June,  1891," 
and  "all  claims  and  demands  existing  in  favor  of  the  Orinoco  Shipping 
and  Trading  Company,  Limited,  against  the  Republic  of  Venezuela." 
The  claims  and  demands  referred  to  constitute  in  the  main  the  claim 
here  presented  on  behalf  of  the  Orinoco  Steamship  Company. 


i 


EEPOET  OF  ROBERT  C.  MORRIS.  257 

The  learned  counsel  for  Venezuela  contends  that: 

At  the  time  when  the  acts  occurred  which  are  the  basis  of  the  claim,  the  Orinoco 
Steamship  Company  did  not  exist  and  could  not  have  had  any  rights  before  coming 
into  existence,  and"  in  order  that  it  might  be  protected  to-day  by  the  United  States 
of  America  it  would  be  necessary  in  accordance  with  the  stipulations  of  the  ])roto- 
col,  that  the  damages,  in  the  event  of  being  a  fact,  should  have  been  suffered  by  an 
American  citizen,  not  that  they  should  have  been  suffered  by  a  third  party  of  differ- 
ent nationality  and  later  traiisferred  to  an  American  citizen;  such  a  proceeding  is 
completely  opposed  to  equity  and  to  the  spirit  of  the  protocol. 

In  the  case  of  Abbiatti  v.  Venezuela  before  the  United  States  and 
Venezuelan  Clamis  Commission  of  1890,  the  question  arose  whether  the 
claimant,  not  having  been  a  citizen  of  the  United  States  at  the  time  of 
the  occurrences  complained  of,  had  a  standing  in  court,  and  it  was  held 
that  under  the  treaty  claimants  must  have  been  citizens  of  the  United 
States  "at  least  when  the  claims  arose."  This  was  declared  to  be  the 
"settled  doctrine." 

Mr.  Commissioner  Little,  in  his  opinion,  says: 

As  observed  elsewhere  the  infliction  of  a  wrong  upon  a  State's  own  citizen  is  an 
injury  to  it,  and  in  securing  redress  it  acts  in  discharge  of  its  own  obligations,  and,  in 
a  sense,  in  its  f)\vn  interest.  This  is  the  key — mbjcct  of  course  to  treat;/  terini< — for  the 
determination  of  such  jurisdictional  questions:  AVas  the  plaintiff  State  injured?  It 
was  not,  when  the  person  wronged  was  at  the  time  a  citizen  of  another  State. 
Naturalization  transfers  allegiance,  but  not  existing  State  obligations. 

It  is  to  be  observed  that  in  attempting-  to  lay  down  a  rule  applicable 
to  the  case  the  Commission  is  careful  to  make  the  significant  reserva- 
tion that  the  rule  enunciated  is  "subject  of  course  to  treaty  terms."  It 
does  not  deny  the  competency  of  the  high  contracting  parties  to  pro- 
vide for  the  exercise  of  a  wider  jurisdiction  by  appropriate  terms  in  a 
treaty.  And  that  is  precisely  what  has  been  done  here.  _  The  une- 
quivocal terms  emploj^ed  in  the  present  protocol  were  manifestly  cho- 
sen to  confer  jurisdiction  of  all  claims  owned  (on  February  17,  1903) 
by  citizens  of  the  United  States  against  the  Republic  of  Venezuela 
presented  to  the  Commission  by  the  Department  of  State  of  the  United 
States  or  its  legation  at  Caracas.  Under  these  treaty  terms  the  key 
to  such  a  jurisdictional  question  as  that  under  consideration  is  the  otvn- 
ership  of  the  claim  by  a  citizen  of  the  United  States  of  America  on  the 
date  the  protocol  was  signed. 

The  pi-esent  claim,  together  with  other  assets  of  the  Orinoco  Ship- 
ping and  Trading  Company,  Limited,  was  acquired  by  valid  deed  of 
assignment  by  the  Orinoco  Steamship  Company,  a  citizen  of  the 
United  States,  on  April  1,  1902,  long  prior  to  the  signing  of  the 
protocol,  and  is  therefore  clearly  within  the  jurisdiction  of  this  Com- 
mission. 

Pursuant  to  the  requirements  of  the  convention  the  Commissioners 
and  the  umpire,  before  assuming  the  functions  of  tiieir  office,  took  a 
solemn  oath  carefully  to  examine  and  impartially  decide  according  to 
justice  and  the  provisions  of  the  convention  all  claims  submitted  to 
"them.  Undoubtedly  the  tirst  question  to  be  determined  in  relation 
to  each  claim  presented  is  whether  or  not  it  comes  within  the  terms  of 
the  treaty.     If  it  does  the  jurisdiction  of  the  Commission  attaches. 

Jurisdiction  is  the  power  to  hear  and  determine  a  cause;  it  is  coram  judicc  when- 
ever a  case  is  presented  which  brings  this  power  into  action.  (United  States  v. 
Arredondo,  6  Pet,  691.) 

S.  Doc.  317,  58-2 17 


258  REPORT  OF  ROBERT  C.  MORRIS. 

Thonoeforwurd  the  Comnnssion  is  directed  ])y  the  protocol  and  is 
bound  ))v  its  oath  carefully  to  examine  and  inijjartiall}"  to  decide  in 
conforniit}'  M'ith  the  principles  of  justice  and  the  rules  of  equity  all 
questions  arisin*^  in  the  claim,  and  its  decision  is  declared  to  be  final 
and  conclusive. 

The  jurisdiction  exercised  by  this  Commission  is  derived  from  a 
solenui  compact  between  independent  nations.  It  supersedes  all  other 
jurisdictions  in  respect  of  all  matters  pi'operly  within  its  scope.  It 
can  not  be  limited  or  defeated  by  any  prior  agreement  of  the  parties 
litigant  to  refer  their  contentions  to  the  local  tribunals.  Local  juris- 
diction is  displaced  by  international  arbitration;  private  agreement  is 
superseded  ))y  public  law  or  treaty. 

As  to  every  claim  fairly  within  the  treaty  terms,  therefore,  the 
functions  of  this  Commission,  under  its  fundamental  law  and  under  its 
oath,  are  not  fulfilled  until  to  its  careful  examination  there  is  added 
an  impartial  decision  upon  its  merits.  It  can  not  den}^  the  benefit  of 
its  jurisdiction  to  any  claimant  in  whose  behalf  the  high  contract- 
ing parties  have  provided  this  international  tribunal.  Jurisdiction 
assumed,  some  decision^  some  final  and  conclusive  action  in  the  exer- 
cise of  its  judicial  jwwer,  is  incumbent  upon  the  Commission.  Mr. 
Commissioner  Gore,  in  the  case  of  the  Befsy^  before  the  United  States 
and  British  Commission  of  1794,  well  said: 

To  refrain  from  acting  when  onr  duty  calls  us  to  act  is  as  wrong  as  to  act  where 
we  have  no  authority.  We  owe  it  to  the  respective  (Toverninents  to  refuse  a  decision 
in  cases  not  submitted  to  us — we  are  under  equal  obligation  to  decide  on  those  cases 
that  are  within  the  submission.     (8  Moore,  Int.  Arb.,  2290.) 

Finally,  the  protocol  imposes  upon  this  tribunal  the  duty  of  deciding 
all  claims  "  upon  a  basis  of  absolute  equity,  without  regard  to  objec- 
tions of  a  technical  nature  or  of  the  provisions  of  local  legislation." 
Clearly,  the  high  contracting  parties  had  in  view  the  substance  and  not 
the  shadow  of  justice.  They  sought  to  make  the  remedies  to  be 
afforded  by  the  Commission  dependent  not  upon  the  niceties  of  legal 
refinement,  but  upon  the  very  right  of  the  case.  The  vital  question 
in  this,  as  in  every  other  claim  before  this  tribunal,  is  whether  and  to 
what  extent  citizens  of  the  United  States  of  America  have  suffered  loss 
or  injury,  and  whether  and  to  what  extent  the  Government  of  Vene- 
zuela is  responsible  therefor. 

The  United   States   and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America,  on  behalf 
of  the  Orinoco  Steamship  Company, 

V. 

The  Republic  of  Venezuela. 


Claim  No.  19. 


Doctor  Grisanti,  Commissioner: 

The  Orinoco  Steamship  Company,  Limited,  demands  payment  of  the 
Government  of  Venezuela  for  four  claims,  as  follows: 

First.  For  $1,209,701.05,  which  sum  the  claimant  company  reckons 
as  due  for  damages  and  losses  caused  by  the  Executive  decree  having, 
as  the  company  affirms,  annulled  its  contract-concession  celebrated  on 
May  26,  1894.  The  company  deems  as  a  reasonable  value  of  the 
contract  $82,432.78  per  annum. 


REPORT  OF  ROBERT  C.  MORRIS.  259 

Second.  For  $147,638.79,  at  which  the  claimant  company  estimates 
the  damages  and  losses  sustained  diirino-  the  last  revolution,  including 
services  rendered  to  the  Government  of  the  Republic. 

Third.  For  100,000  bolivars,  or  $19,219.19  overdue  on  account  of 
the  transaction  celebrated  on  May  10,  1900. 

Fourth.  For  $35,000  for  counsel  fees  and  expenses  incurred  in 
carrying  out  said  claim. 

The  forementioned  claims  are  held  by  the  Orinoco  Steamship  Corn- 
pan}",  a  corporation  of  American  citizenship,  organized  and  existing 
under  and  pursuant  to  the  provision  of  an  act  of  the  legislature  of  the 
State  of  New  Jersey  as  assignee  and  successor  of  the  Orinoco  Ship- 
ping and  Trading  Company,  Limited,  of  English  nationality,  organ- 
ized in  conformity  with  the  respective  laws  of  Great  Britain. 

And  in  fact  it  has  always  been  The  Orinoco  Shipping  and  Trading 
Company,  Limited,  which  has  dealt  and  contracted  with  the  Govern- 
ment of  Venezuela,  as  evidenced  by  the  documents  and  papers  relating 
thereto.  In  case  the  forementioned  claims  be  considered  just  and  cor- 
rect, the  rights  from  which  they  arise  were  originally  invested  in  the 
juridical  character  (persona  juridica)  of  the  Orinoco  Shipping  and 
Trading  Company,  Limited;  and  its  claims  are  for  the  first  time  pre- 
sented to  this  Mixed  Commission  by  and  on  behalf  of  the  Orinoco 
Steamship  Company,  as  its  assignee  and  successor,  in  virtue  of  an 
assignment  and  transfer  v.hich  appears  in  Exhibit  No.  8  annexed  to  the 
memorial  in  pages  61  to  59  of  the  same,  and  in  reference  to  which 
assignment  we  sliall  presently  make  some  remarks. 

Before  stating  an  opinion  in  regard  to  the  grounds  of  said  claims, 
the  Venezuela  Commissioner  holds  that  this  Commission  has  no  juris- 
diction to  entertain  them.  Said  objection  was  made  by  the  honorable 
agent  for  Venezuela  prior  to  discussing  the  claims  in  themselves,  and 
as  the  Venezuela  Commissioner  considers  such  objection  perfectly  well 
founded,  he  adheres  to  it,  and  will  furthermore  state  the  powerful 
reasons  on  which  he  considers  said  objection  to  be  founded. 

It  is  a  principle  of  international  law,  universally  admitted  and  prac- 
ticed, that  for  collecting  a  claim  protection  can  only  l)e  tendered  by 
the  government  of  the  nation  belonging  to  the  claimant  who  originally 
acquired  the  right  to  claim,  or,  in  other  words,  that  an  international 
claim  must  be  held  by  the  person  who  has  retained  his  own  citizenship 
since  said  claim  arose  up  to  the  date  of  its  final  settlement,  and  that 
only  the  government  of  such  person's  country  is  entitled  to  demand 
paj'ment  for  the  same,  acting  on  behalf  of  the  claimant.  Further- 
more, the  original  owner  of  the  claims  we  are  analyzing  was  the  Ori- 
noco Shipping  and  Trading  Company,  Limited,  an  English  company; 
and  that  which  dcnnands  their  payment  is  the  Orinoco  Steamship  Com- 
pany, Limited,  an  American  company;  and  as  claims  do  not  change 
nationality  for  the  mere  fact  of  their  future  owners  having  a  different 
citizenship,  it  is  as  clear  as  daylight  that  this  Venezuelan-American 
Mixed  Commission  has  no  jurisdiction  for  entertaining  said  claims. 
The  doctrine  which  I  hold  has  also  been  sustained  by  important  deci- 
sions awarded  by  international  arl)itrations. 

Albino  A})))iatti  appli<'(l  to  tlie  Venezuelan-American  Mixed  Com- 
mission of  1S!)0  (daiming  to  be,  paid  several  amounts  which  in  his 
opinion  the  fiovernment  of  Venezuela  owed  him.  "^Khe  acts  alleged  as 
the  grounds  for  the  claims  took  place  in  1803  and  1864,  at  which  time 
Abbiatti  was  an  Italian  subject,  and  it  appears  that  subsequently,  in 


260  REPORT  OF  ROBERT  C.  MORRIS. 

1866,  he  became  a  United  States  citizen.  The  Commission  disallowed 
the  claim  declaring-  its  want  of  jurisdiction  to  entertain  said  claim,  for 
the  following-  reasons: 

Has  the  claiiuant,  then,  not  liaving  been  a  citizen  of  the  United  States  at  the  time 
of  the  occurrence  complained  of,  a  standing  here?  The  question  is  a  jurisdicstional 
one.  The  treaty  provides:  "All  claims  on  the  part  of  corporations,  companies,  or 
individuals,  citizens  of  the  United  States,"  upon  the  Government  of  Venezuela 
*  *  *  shall  be  submitted  to  a  new  commission,  etc.  Citizens  when?  In  claims 
like  this  they  must  have  been  citizens  at  least  when  the  claims  arose.  Such  is  the 
settled  doctrine.  The  plaintiff  State  is  not  a  claim  agent.  As  observed  elsewhere, 
the  infliction  of  a  wrong  ui)Ou  a  State's  own  citizen  is  an  injury  to  it,  and  in  securing 
redress  it  acts  in  discharge  of  its  own  obligations  and,  in  a  sense,  in  its  own  interest. 
This  is  the  key,  subject  of  course  to  treaty  terms,  for  the  detei'mination  of  such  juris- 
dictional questions.  Was  the  plaintiff  State  injured?  It  was  not,  where  the  person 
wronged  was  at  the  time  a  citizen  of  another  State,  although  afterwards  becoming  its 
own  citizen.  The  injury  there  was  to  the  other  State.  Naturalization  transfers 
allegiance,  but  not  existing  State  obligations.  Abbiatti  could  not  impose  upon  the 
United  States  by  becoming  its  citizen,  Italy's  existing  duty  toward  him.  This  is  not 
a  case  of  uncompleted  wrong  at  the  time  of  citizenship  or  of  one  continuous  in  its 
nature. 

The  Commission  has  no  jurisdiction  of  the  claim  for  want  of  required  citizenship, 
and  it  is  therefore  dismissed.  (United  States  and  Venezuelan  Claims  Commission — 
Claim  of  Albino  Abbiatti  versus  The  Republic  of  Venezuela,  No.  34,  Citizenship, 
page  84. ) 

In  the  case  mentioned  Abbiatti  had  always  owned  the  claim,  but  as 
he  was  an  Italian  subject  when  the  damag-e  occurred,  the  Commission 
declared  having  no  jurisdiction  to  entertain  said  claim,  notwithstand- 
ing that  at  the  time  of  applying  to  the  Commission  he  had  become  a 
citizen  of  the  United  States. 

Article  1  of  the  protocol,  signed  at  Washington  on  February  17  of 
the  current  year,  sa3^s,  textually,  as  follows:  ^''All  cJaiuts  owned  hy  citi- 
zens of  the  United  States  of  America  against  the  Rejndtlic  ivhich  have 
not  heen  settled  hy  diplomatic  agreement  or  hy  arbitration  hetween  the 
txDO  Governments^  and  which  shall  have  been  'presented  to  the  commis- 
sion hereinafter  named  by  the  Department  of  State  (9/ the  United  States 
or  its  legation  at  Caracas,  shall  be  examined  and  decided  by  a  mixed 
commission,"  etc.  Owned  when?  we  beg-  to  ask  in  our  turn,  as  in  the 
above-in.serted  decision.  Owned  ab  initio;  that  is  to  say,  owned  since 
the  moment  when  the  right  arose  up  to  the  moment  of  applying  with 
it  to  this  Mixed  Commission.  The  verl)  "to  own"  means  to  possess^ 
and  as  used  in  the  protocol  'A\^m'^^,^  '"''being  the  original lyroprietor^'' 
therefore  it  will  not  suffice  that  the  claim  ))e  possessed  by  a  citizen  of 
the  United  States  at  the  time  the  protocol  was  signed;  the  jurisdic- 
tion of  this  Commission  requires  that  the  right  should  have  risen  in  the 
citizen  of  the  United  States,  and  that  said  citizen  shall  never  have 
failed  to  be  the  owner  of  such  a  right.  Thus,  and  thus  only,  could  the 
Government  of  the  United  States  protect  the  claimant  company;  thus 
and  on  such  conditions  alone  would  this  Commission  have  jurisdiction 
to  entertain  said  claims. 

If  the  clause  "  All  claims  owned  by  citizens  of  the  United  States 
of  America,"  etc.,  were  considered  doubtful,  and  consequently  should 
require  interpretation,  it  ought  undoubtedly  to  be  given  in  accordance 
with  the  forementioned  universal  principle — the  basis  of  this  state- 
ment— and  not  in  opposition  to  it.  Dei-ogation  of  a  principle  of  law 
in  a  judicial  document  has  to  be  most  clearly  expressed,  otherwise  the 
principle  prevails,  and  the  protocol  must  be  interpreted  accordingly. 


REPORT  OF  ROBERT  C.  MORRIS.  201 

While  in  some  of  the  earUer  cases  the  decisions  as  to  what  constituted  citizenship 
within  the  meaning  of  the  convention  were  exceptional,  it  was  uniforiidy  held  that 
such  citizenship  was  necessary  when  the  claim  was  presented  as  well  as  when  it  arose. 
Numerous  claims  were  dismissed  on  the  ground  that  the  claimant  was  not  a  citizen 
when  the  claim  arose.  The  assignment  of  a  claim  to  an  American  citizen  was  held 
not  to  give  the  commission  jurisdiction. 

An  American  woman  who  was  married  in  July,  1861,  to  a  British  subject  in  Mexico 
was  held  not  to  be  competent  to  appear  before  the  commission  as  a  claimant  in 
respect  of  damage  done  by  the  ^Mexican  authorities  in  November,  1861,  to  the  estate 
of  her  former  husband,  though  her  second  husband  had  in  1866  become  a  citizen  of 
the  United  States  by  naturalization.  ,0n  the  other  hand,  where  the  nationality  of 
the  owner  of  a  claim,  originally  American  or  Mexican,  had  for  any  cause  changed, 
it  was  held  that  the  claim  could  not  be  entertained.  Thus,  where  the  ancestor,  who 
was  the  original  owner,  had  died,  it  was  held  that  the  heir  could  not  appear  as  a 
claimant  unless  his  nationality  was  the  same  as  that  of  his  ancestor.  The  person  who 
had  the  "right  to  the  award"  must,  it  was  further  held,  be  considered  as  the  "real 
claimant'-'  by  the  commission,  and  whoever  he  might  be  must  "prove  himself  to  be 
a  citizen"  of  the  government  by  which  the  claim  was  presented.  (Moore,  Interna- 
tional Arbitrations,  vol.  2,  p.  1353. ) 

In  the  memorial  (No.  4)  it  is  affirmed  that  99  per  cent  of  the  total 
capital  .stock  of  the  Orinoco  Sliipping  and  Trading-  Company,  Limited, 
was  owned  by  citizens  of  the  United  States  of  America,  but  this  circum- 
stance, even  if  it  were  proved,  does  not  deprive  said  company  of  its 
British  nationalit}',  on  account  of  its  being-  organized  according  to  the 
referred-to  memorial,  under  the  English  companies'  acts  of  1802  to 
1893,  and  duly  registered  in  the  office  of  the  register  of  joint  stock 
companies,  London,  on  the  llith  of  July,  1898.  The  fact  is,  that  lim- 
ited companies  owe  their  existence  to  the  law  in  conformity  to  which 
they  have  been  organized,  and  consequently  their  nationalit}'  can  be  no 
other  than  that  of  said  law.  The  conversion  of  said  company,  which 
is  English,  into  the  present  claimant  compan}',  which  is  North 
American,  can  have  no  retroactive  effect  in  giving-  this  tribunal  juris- 
dition  for  entertaining  claims  which  were  originally  owned  bj^  the  tir.st- 
mentioned  company,  as  such  would  be  to  overthrow,  or  infringe, 
fundamental  principles. 

NATURALIZATION    NOT   RETROACTIVE. 

Without  discusiing  here  the  theory  about  the  retroactive  effect  of  naturalization 
for  certain  purpo.ses,  I  believe  it  can  be  safely  denied  in  the  odious  matter  of  injuries 
and  damages.  A  government  may  resent  an  indignity  or  injustice  done  to  one  of  its 
subjects,  but  it  would  be  absurd  to  open  an  asylum  to  all  who  have,  or  believe  they 
have,  received  some  injury  or  damage  at  the  hands  of  any  existing  government  to 
come  and  be  naturalized  for  the  effect  of  obtaining  redress  for  all  their  grievances. 
(Moore,  work  cited,  vol.  3,  p.  2483.) 

The  three  quotations  inserted  hold  and  sanction  the  principle  that, 
in  order  that  the  claimant  might  allege  his  rights  before  a  mixed  claims 
conunission  organized  })y  the  goverimient  of  his  country  and  that  of 
the  owing  nation,  it  was  necessary  that  tlie  claim  always  belonged  to 
him.  and  that  he  should  never  have  changed  his  nationality.  And  this 
principle  demands  that  t  his  Commission  should  declare  its  want  of  juris- 
diction, whether  the  two  companies  be  considered  as  diffenmt  juridical 
character  (personte  jui'ldicas)  and  that  the  claimant  is  a  successor  of 
the  other,  or  whether  they  be  considered  as  one  and  the  same,  haA'ing 
changed  nationality. 

I  now  beg  to  refer  to  another  matter — to  the  analysis  of  the  judicial 
value  of  the  deed  of  assignment. 


262  REPORT  OF  ROBERT  C.   MORRIS. 

Ill  {\\o  first  minitxM-  (;f  (he  oxliil)i(  '"{ho  Orinoco  Sliippino-  and  Trad- 
ing- (\)nn):in\ ,""  wliicli  is  tlio  chiimant,  tiie  iiino  steamships  named, 
respectively,  /jo/Zn//;  M<iti-:<(ti((i'(X^  DclUi^  Ajxirc^  (hiaiKiro^  Socorro^ 
Miixpdi'i'o^  Iloros,  and  Moryan/fo.  These  steamsJiips  wei'e  destined  for 
coastal  service  or  cal)otaje,  some  to  navigate  the  rivers  Guanaro, 
Cojedes,  Portugesa,  antl  Masparro,  from  Ciudad  Bolivar  up  to  the 
mouth  of  the  Uribanto  River  (Olacchea  contract  of  June  27,  1891)  and 
others,  to  navigate  between  said  Ciudad  Bolivar  and  Maracaibo,  and  to 
call  at  the  ports  of  La  Vela,  Puerto  Ciabello,  La  Cuayra,  Guanta, 
Puerto  Sucre,  and  Carupano  ((irell  contract,  Juno  8,  18!>4),  this  line 
was  granted  the  option  of  calling  at  the  ports  of  ('ura^-ao  and  Trinidad. 

While  the  Government  tixes  definitely  the  transshipment  ports  for  merchandise 
from  abroad,  and  while  they  are  making  the  necessary  installations  (art.  12). 

However,  the  coastal  trade  can  only  be  carried  on  by  ships  of  Ven- 
ezuelan nationality,  in  conformity  with  article  1,  Law  XVllI  of  the 
Financial  Code,  which  provides  that: 

Internal  maritime  trade  of  cabotaje,  or  coastal  service,  is  that  which  is  carried  on 
between  the  open  ports  of  Venezuela  and  other  parts  of  the  continent,  as  well  as 
between  the  banks  of  its  lakes  and  rivers,  hi  national  shipa,  whether  laden  with  for- 
eign merchandise  for  which  duties  have  been  paid  or  with  native  goods  or  produc- 
tions.    (Comercio  de  Catotaje,  p.  87. ) 

And  if  ^ye  further  add  that  the  steamers  were  obliged  to  navigate 
under  the  Venezuelan  flag  (art.  2  of  the  GroU  contract),  as  in  fact 
they  did,  the  result  is  that  said  steamers  are  Venezuelan  by  nationali- 
zation; wherefore,  the  assignment  of  said  steamers  pretended  by  The 
Orinoco  Shipping  and  Trading  Company,  Limited,  to  the  claimant 
company,  is  absolutely  void  and  of  no  value,  owing  to  the  fact  that 
the  stipulations  provided  by  the  Venezuelan  law  (herewith  annexed) 
for  the  validity  of  such  an  assignment,  were  not  fulfilled. 

Law  XXXIII  (Financial  Code).  —  0/i.  the  nat2cralisatio?i  of  ships. 

Art.  1st.  The  following  alone  will  be  held  as  national  ships: 

1st     *     *     * 

2nd.  *     *     * 

3rd.    *     *     * 

4:th.  Those  nationalized  according  to  law. 

Art.  6th.  *     *     * 

'<■  ****** 

"only.  The  guarantee  given  for  the  proper  use  of  the  flag  must  be 
to  the  satisfaction  of  the  custom-house.  The  property  deed  must 
be  registered  at  the  office  of  the  place  where  the  purchase  takes 
place,  and  if  such  purchase  is  made  in  a  foreign  country  a  certificate 
of  the  same,  signed  })y  the  Venezuelan  consul  and  by  the  harbor  master, 
shall  have  to  be  sent,  drawn  on  due  stamped  paper." 

Art.  12th.  When  a  ship,  or  a  part  thereof,  is  to  be  assigned,  a  new 
patent  must  be  obtained  by  the  assignee,  after  having  presented  the 
new  title  deeds  to  the  custom-house,  and  receiving  therefrcfm  the  former 
patent,  stating  measurements  and  tonnage  therein  contained,  in  order 
to  obtain  said  patent. 

The  assignment  of  the  aforementioned  steamer  is,  to  the  Govern- 
ment of  Venezuela,  void  and  of  no  value  or  effect  whatever. 


REPORT  OF  ROBERT  C.  MORRIS.  263 

In  Exhibit  No.  2,  "The  Orinoco  Shipping  and  Trading  Company, 
Li  raited."  appears  assigning  several  immovable  properties  situated  in 
the  territorio  Federal  Amazonas  of  the  Ki^pu))lic  of  Venezuela  to  the 
claimant  compan}^  and  the  title  deed  has  not  been  registered  at  the 
subregister  office  of  said  territory,  as  prescribed  by  the  Venezuelan 
Civil  Code  in  the  following  provisions: 

Art.  1883.  Registration  must  be  made  at  the  proper  office  of  the  department,  dis- 
trict, or  canton,  where  tlie  immovable  property  which  has  caused  the  deed  is  situated. 

Art.  1886.  In  addition  to  those  deeds  which,  by  special  decree  are  subject  to  the 
formalities  of  registration,  the  following  must  be  registered: 

1st.  All  acts  between  living  beings,  due  to  gratuitous,  onerous,  or  assignment  title 
deeds  of  immovable  or  other  property  or  rights  susceptible  of  hypothecation. 

In  Exhibit  No.  3,  The  Orinoco  Shipping  and  Trading  Company, 
Limited,  appears  assigning  the  Olachea  contract  of  June  27, 1891,  and 
the  Grell  contract  of  June  8,  1894.  In  assigning  the  first  of  these, 
the  approval  of  the  Venezuelan  Government  was  not  obtained,  either 
before  or  after,  thereby  infringing  the  following  provision: 

This  contract  may  be  transferred  wholly  or  in  part  to  any  other  person  or  corpora- 
tion upon  previous  approval  of  the  National  (^overnme^it. 

In  assigning  the  second,  the  stipulation  provided  in  article  18  of 
giving  previous  notice  to  the  Government,  was  infringed.  If  any 
argument  could  be  made  in  regard  to  the  annulment  of  the  latter 
assignment,  there  is  no  doubt  whatever  in  regard  to  the  annulment 
of  the  former,  whereas  in  the  foregoing  provision  the  (rovernment 
reserves  the  right  of  being  a  contracting  party  in  the  assignment,  and 
consequently  said  assignment,  without  the  previous  consent  of  the 
Government,  is  devoid  of  judicial  efficacy. 

The  assignment  of  those  contracts  is,  therefore,  of  no  value  for  the 
Government  of  Venezuela. 

The  fifth  paragraph  of  the  same  refers  to  the  assignment  which 
"The  Orinoco  Shipping  and  Trading  Company,  Limited,''  intended  to 
make  to  "The  Orinoco  Steamship  Company  "  of  all  claims  and  demands 
existing  in  favor  of  the  party  of  the  first  part,  either  against  the 
Republic  of  Venezuela  or  against  any  individuals,  firms,  or  corpora- 
tions. This  transfer  of  credits  which  are  not  specified  nor  even 
declared,  and  which  has  not  been  notified  to  the  Government,  is  abso- 
lutely irregular  and  lacks  judicial  efficacy  with  regard  to  all  parties 
except  the  assignor  and  assignee  companies  in  conformity  with  article 
1496  of  the  civil  code,  which  provides  as  follows: 

An  assignee  has  no  rights  against  third  parties  until  after  the  assignment  has  been 
notifieil  to  the  debtor  or  when  said  debtor  has  accepted  said  assignment. 

The  foregoing  article  is,  in  substance,  identical  to  artich^  1890  of  the 
French  Civil  Code,  and  in  reference  thereto  Baudry-Lacantinerie  says 
that — 

I.es  formal itcs  prescritos  par  I'art.  1600  ont  jiour  but  de  donner  a  la  cession  une 
certainc  jinl)licit(',  et  c'cst  i)our  ce  motif  (jiu!  la  loi  fait  do  leur  accomplissement  une 
condition  de  I'iiivestiture  dn  cessionnaire  a  I'rgard  des  tiers.  Les  tiers  sont  reput/'S 
ignorer  la  cession  tant  ciu'elle  n'a  pas  6t6  rendue  publique  par  la  signification  du 
transport  ou  par  l'ac(!eptation  authentique  du  c^-dc;  voila  pounpioi  elle  ne  leuv 
devient  opposable  qu'a  dater  de  I'accomijlisement  de  I'une  ou  de  I'autre  de  ces  for- 
malit^s.     (Precis  du  Droit  Civil,  Tome  troisicine,  p.  :^>94,  numero  624.) 

Quelles  sont  les  personnes  (jue  I'article  ]CM)  d^signe  sous  Ic  nom  de  tiers,  et  a 
I'egard  d('S(|iic]les  le  cessionnaire;  n'est  saisi  (jue  par  la  notilication  cm  racei)tation 
authentiepie  du  transport?  Ce  sont  tons  ceux  qui  n'ont  pas  etc  partie  fi  la  cession  et 
qui  ont  uu  iuteret  legitime  il  la  connaitre  et  a  la  contester,  c'est-a-dire:  1"  le  cede; 


204  KKiH>iiT    OF    KOHERT    C.   MORRIS. 

'2"  tt)us!  oonx  i\u[  oMt  a;'(]uis  ;lu  clut'  du  (vdani  i\{'>i  (Iri)its  siir  la  creance  cM^e;  3°  les 
ci"^anciers  (•hiro!i;rai>hain>y  du  (vdaiit. 

1.  Ja'  (h'hitiiir  <y<h'. — .lusciu'a  ce  (nu>  It'  Iransixnt  lui  ait.  ete  notifir  ou  qu'il  I'ait 
aci'0]Ue,  le  (U''l)itt'iir  (v'hIi''  a  le  dn)it  dc  cousidri'ci-  lo  (•('■dant  coinine  otant  le  veritable 
titulairode  lacivaiuv.  l.a  loi  nous  foiiriiit  trois  ai)i)licati()ns  deer  principe.  (Baudry- 
Uioantinorie,  woi'k  and  volume  quoted,  p.  395.  Hee  also  Laurent,  "Principes  de 
Droit  Civil,"  vol.  24,  p.  472.) 

I  do  not  expect  that  the  forejj;oing-  arg'umcnts  be  contested,  having 
recourse  to  the  l'olh)\ving  provision  of  the  protocol: 

The  conuiiis.*ioner8,  or  in  case  of  their  disagreement,  the  umpire,  shall  decide  all 
claims  upon  a  basis  of  absolute  etjuity,  without  regard  to  objections  of  a  technical 
nature  or  of  the  provisions  of  local  legislation. 

If  such  a  broad  sense  were  given  to  this  clause  in  regard  to  all  cases 
as  to  bar  an}'  consideration  for  Venezuelan  law  it  would  not  only  be 
absurd  but  monstrous.  Such,  however,  can  not  be  the  case.  How 
could  a  claim  possil)ly  be  disallowed  on  the  grounds  of  the  claimant 
being  a  Venezuelan  citizen  without  invoking  the  Venezuelan  law  which 
bestows  upon  him  said  citizenship?  How,  in  certain  commissions, 
could  Venezuela  have  been  exempted  from  having  to  pay  for  damages 
caused  by  revolutionists  if  the  judicial  principles  which  establish  such 
exemption  had  not  been  pleaded?  Said  clause  provides  that  no  regard 
shall  be  had  to  objections  of  a  technical  nature  or  of  the  provisions  of 
local  legislation  whenever  such  objections  impair  principles  of  equity, 
but  when  in  compliance  with  said  principles  to  disregard  those  objec- 
tions would  be  to  overthrow  equity  itself,  and  equity  has  to  be  the 
basis  for  all  the  decisions  of  this  Commission.  In  the  present  instance 
conformit}'  exists  between  the  one  and  the  others.  And  in  merely 
adding  that  the  majority  of  the  cited  provisions  are  in  reference  to 
contracts  it  is  miderstood  that  their  basis  has  been  equity  and  not  rig- 
orous law.  On  the  other  hand  if  this  Commission  were  to  decide  upon 
paying  an  award  for  a  claim  which  the  claimant  company  is  not  prop- 
erly entitled  to  through  not  being  the  owner  thereof  it  would  be  a 
contention  against  the  precepts  of  equity. 

In  view,  therefore,  of  the  substantial  irregularities  of  the  deed  of 
assignment  and  transfer,  the  Government  of  Venezuela  has  a  perfect 
right  to  consider  "The  Orinoco  Shipping  and  Trading  Company, 
Limited,"  as  the  sole  owner  of  the  claims  analyzed,  and  whereas  said 
company  is  of  British  nationality  this  Venezuelan-American  Mixed 
Commission  has  no  jurisdiction  to  entertain  the  claim  mentioned. 

The  incompetency  of  this  Commission  has  been  perfectl}'  established. 
I  shall  now  analyze  the  claims  in  themselves.  The  Orinoco  Steamship 
Company  holds  that  the  executive  decree  promulgated  on  October  5, 
1900,  allowing  the  free  navigation  of  the  Macareo  and  Pedernales 
channels,  annulled  its  contract-concession  of  May  26,  1894,  which  con- 
tract the  claimant  company  considered  as  granting  it  the  exclusive 
right  to  carry  on  foreign  trade  through  said  channels.  The  company 
states  as  follows: 

Since  said  16th  day  of  December,  A.  D.  1901,  notwithstanding  the  binding  contract 
and  agreement  between  the  United  States  of  Venezuela  and  The  Orinoco  Shipping 
and  Trading  Company,  Limited,  and  your  memorialist,  as  assignee  of  said  company, 
to  the  contrary,  said  United  States  of  Venezuela,  acting  through  its  duly  constituted 
officials,  has  authorized  and  permitted  said  Macareo  and  Pedernales  channels  of  the 
river  Orinoco  to  be  used  and  navigated  by  vessels  engaged  in  foreign  trade  other 
than  those  belonging  to  your  memorialist  or  its  predecessors  in  interest,  and  has  thus 
enabled  said  vessels  to  do  much  of  the  business  and  to  obtain  the  profits  therefrom 
which,  under  the  terms  of  said  contract-concession  of  June  8,  1894,  and  the  extension 
thereof  of  May  10, 1900,  should  have  been  done  and  obtained  solely  by  your  memorial- 


REPORT  OF  ROBERT  C.  MORRIS.  265 

ist  or  its  said  predecessor  in  interest,  and  much  of  said  business  will  continue  to  be 
done  and  the  profits  derivable  therefrom  will  continue  to  be  claimed  and  absorbed 
by  persons  and  companies  other  than  your  memorialist,  to  its  great  detriment  and 
damage.     (Memorial,  pp.  28  and  29.) 

Let  us  state  the  facts  such  as  they  appear  in  the  respective  docu- 
ments. 

On  July  1,  1893,  the  executive  power  issued  a  decree  in  order  to 
prevent  contraband  which  was  carried  on  in  the  several  bocas  (mouths) 
of  the  river  Orinoco,  to  wit:     . 

Art.  Vessels  engaged  in  foreign  trade  with  Ciudad  Bolivar  shall  be  allowed  to 
proceed  only  by  way  of  the  Boca  Grande  of  the  river  Orinoco;  the  Macareo  and 
Pedernales  channels  being  reserved  for  the  coastal  service,  navigation  by  the  other 
channels  of  the  said  river  being  absolutely  prohibited. 

On  May  26,  1894,  the  executive  power  entered  into  a  contract  with 
Mr.  Ellis  Grell,  represented  by  his  attorne}-,  Mr.  Manuel  Antonio 
Sanchez,  wherein  the  contractor  undertook  to  establish  and  maintain 
in  force  navigation  b}'  steamers  between  Ciudad  Bolivar  and  Maricaibo, 
in  such  manner  that  at  least  one  journe}'-  per  fortnight  l)e  made, 
touching  at  the  ports  of  La  Vela,  Puerto  Cabello,  La  Guayra, 
Quanta,  Puerto  Sucre,  and  Carupano.  Article  12  of  this  contract 
stipulates  as  follows: 

While  the  Government  fixes  definitely  the  transshipment  ports  for  merchandise 
from  abroad,  and  while  they  are  making  the  necessary  installations,  the  steamers 
of  this  line  shall  be  allowed  to  call  at  the  ports  of  Curasao  and  Trinidad,  and  any 
one  of  the  steamers  leaving  Trinidad  may  also  navigate  by  the  channels  of  the 
Macareo  and  I*edernales  of  the  river  Orinoco,  in  conformity  with  the  formalities 
whicli  by  spec'ial  resolution  may  be  imposed  by  the  minister  of  finance  in  order  to 
prevent  contraband  and  to  safeguard  tiscal  interests;  to  all  which  conditions  the 
contractor  agrees  beforehand. 

On  October  5,  1900,  the  National  Executive  promulgated  the  follow- 
ing decree: 

Article  1.  The^decree  of  the  1st  of  July,  1893,  which  prohibited  the  free  naviga- 
tion of  the  Macareo,  Pedernales,  and  other  navigable  waterways  of  the  river  Orinoco, 
is  abolished. 

Did  the  1894  contract  grant  the  Orinoco  Shipping  and  Trading  Com- 
pany, Limited,  an  exclusive  privilege  to  engage  in  foreign  trade  with 
the  u.se  of  said  Macareo  and  Pedernales  channels?  The  perusal  of 
article  12  above  referred  to,  will  suffice,  without  the  least  hesitation, 
to  answer  this  question  negatively.  The  fact  is  that  the  company's 
contract  concession  is  for  establishing  the  inward  trade  between  the 
ports  of  the  Republic,  from  Ciudad  Bolivar  to  Maracaibo;  and  the 
company's  steamers  were  only  granted  a  temporal  permission  to  call 
at  Cura(;ao  and  Trinidad,  while  the  Government  fixed  definitely  the 
trnn!<s}i  Ijriiient 2)07is  fior  iiieTchindiae  from  abroad.,  and  v.)hile  they  were 
inahiiKj  the  necessary  inxtallations. 

It  would  be  neces.sary  to  overthrow  the  most  rudimental  laws  of 
logic  in  order  to  hold  that  a  line  of  steamers  established  to  engage  in 
coastal  trade  or  eahotajd^  navigating  on  the  Macareo  and  Pedernales 
channels,  which  are  freofor  internal  navigation,  shoidd  have  the  priv- 
ilege of  engaging  in  foreign  trade  throudi  the  mentioned  channels. 
The  decree  of  July  1,  1S93,  pronuilgated  to  prevent  contraband  in 
the  channels  of  the  river  Orinoco,  and  on  the  coast  of  Paria,  is  not  a 
stipulation  of  the  contract  concession  of  the  Orinoco  Shipping  and 
Trading  Company,  Limited,  and  therefore  the  (Jovernment  of  Ven- 
ezuela could  willingly  abolish  it,  as  in  fact,  it  did  abolish  if  on  Octo- 


t?(U)  KKPORT    OF    ROHEKT    C.   MORRIS. 

\h'y  5,  IDOiK  Neither  is  it  reiisonahle  to  suppose  that  the  Government 
:it  the  time  of  celehnitiiig  the  referred-to  contract,  alienated  its  k\ois- 
hitive  powers,  which,  ()win«>'  to  their  nature,  are  unalienahle.  On  the 
other  hand,  a  privik^ye,  being  an  exception  to  common  hiw,  must  be 
most  clearly  estal)lished;  otherwise  it  does  not  exist.  Whenever  inter- 
pretation is  required  b}'  a  contract,  it  should  be  given  in  the  sense  of 
freedom;  or,  in  other  words,  exclusiv<5  of  privileges. 

Fui'thermore  it  is  to  be  remarked,  that  "the  Orinoco  Shipping  and 
Trading  Company,  Limited,  has  never  complied  Avith  either  of  the  two 
contracts  (the  Olaechea  and  the  (irell  contracts)  particularly  as  refers 
to  the  latter,  as  evidenced  by  a  document  issu(Ml  by  said  company, 
whereof  a  eopy  is  herewith  presented,  and  as  evidenced  also  ))y  the 
memorial  (No.  15). 

On  ISlay  1(»,  1900,  a  settlement  was  agreed  to  by  the  ministin-  of 
internal  affairs  and  the  Orinoco  Shipping  and  Trading  Company, 
Limited,  in  virtue  whereof  the  Government  undertook  to  pay  the 
company  200,000  ])olivars  for  all  its  claims  prior  to  said  convention, 
having  forthwith  paid  said  company  100,000  ))olivars;  and  at  the  same 
time  a  resolution  was  issued  b}^  said  minister  granting  the  Grell  con- 
tract (May  2(),  1S94)  a  further  extension  of  six  3'ears. 

The  company  holds  that  the  decree  of  October  5,  1900,  annulled  its 
contract,  and  also  annihilated  the  above-mentioned  prorogation;  and 
that,  as  the  concession  of  said  prorogation  had  been  the  principal  basis 
of  the  settlement  for  the  company  to  reduce  its  credits  to  200,000 
bolivars,  said  credits  now  arise  in  their  original  amount. 

It  has  already  been  proved  that  the  referred-to  Executive  decree  of 
Octol)er  5,  1900,  did  not  annuU  the  Grell  contract,  and  this  will  suffice 
to  evidence  the  unreasonableness  of  such  contention.  It  mu^st  f  urther- 
moi-e  be  added,  that  the  settlement  and  the  concession  for  prorogation 
are  not  the  same  act,  nor  do  they  appear  in  the  same  document,  there- 
fore it  can  not  be  contended  that  the  one  is  a  condition _  or  stipulation 
of  the  other.  Besides,  the  concession  for  prorogation  accounts  for 
itself  without  having  to  relate  it  to  the  settlement;  whereas  in  the 
resolution  relative  to  said  prorogation,  the  company  on  its  part, 
renounced  its  right  to  the  subsidy  of  4,000  bolivars  which  the  Govern- 
ment had  assigned  to  it  in  article  7  of  the  contract. 

The  Venezuelan  Commissioner  considers  that  this  Commission  has 
not  jurisdiction  to  entertain  the  claims  deduced  by  the  Orinoco  Steam 
ship  Company,  and  that   in   case   it   had,   said   claims   ought   to   be 
disallowed. 

The  United   States   and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  ox  behalf] 
of  the  Orinoco  Steamship  Companv,  claim-  | 
ant,  "  ^No.  19. 

V. 

The  Republic  of  Venezuela. 

The  Umpire: 

A  difference  of  opinion  arising  between  the  Conunissioners  of  the 
United  States  of  North  America  and  the  United  States  of  Venezuela, 
this  case  was  duly  referred  to  the  umpire. 


REPORT  OB'  ROBERT  C.  MORRIS.  267 

The  umpire  having  fully  taken  into  consideration  the  protocol,  and 
also  the  documents,  evidence,  and  aronmeiits.  and  also,  likewise,  all 
other  communications  made  bv  the  two  parties,  and  lia\ino- impartially 
and  carefully  examined  the  same,  has  arrived  at  the  decision  emltodied 
in  the  present  award. 

Whereas  the  Orinoco  Steamship  Compan}^  demands  payment  of  the 
Government  of  Venezuela  for  four  claims,  as  follows: 

First.  $1,209,700.05  as  due  for  damages  and  losses  caused  l\y  the 
executive  decree  of  October  .5,  1900,  having  this  decree  annulled,  a 
contract  concession  celebrated  on  jNIay  26,  1894. 

Second.  100,000  bolivars,  or  $19,219.10,  overdue  on  account  of  a 
transaction  celel)rated  on  May  10,  1900. 

Third.  $149,698.71  for  damages  and  losses  sustained  during  the  last 
revolution,  including  services  rendered  to  the  Government  of  the 
Republic. 

Fourth.  $25,000  for  counsel  fees  and  expenses  incurred  in  carrying 
out  said  claims. 

And  whereas  the  jurisdiction  of  this  Commission  in  this  case  is  ques- 
tioned, this  cjuestion  has  in  the  tirst  place  to  be  investigated  and  decided. 

Now  whereas  the  protocol  (on  which  alone  is  based  the  Tight  and  the 
duty  of  this  Commission  to  examine  and  decide  "upon  a  basis  of 
absolute  equity,  \vithout  regard  to  the  objections  of  a  techniciu  nature 
or  of  the  provisions  of  local  legislation"),  gives  this  Commission  the 
right  and  imposes  the  duty  to  examine  and  decide  "all  claims  owned 
by  citizens  of  the  United  States  of  America  against  the  Kepul)lic  of 
Venezuela  which  have  not  been  settled  by  diplomatic  agreement  or  ])y 
arbitration  l)etween  the  two  Governments,  and  which  shall  have  been 
presented  to  the  Commission  by  the  Department  of  State  of  the  United 
States  or  its  legation  at  Caracas."  It  has  to  be  examined  in  how  far 
this  claim  of  the  Orinoco  Steamship  Company  possesses  the  essential 
quahties  to  fall  under  the  jurisdiction  of  this  Commission. 

Now,  whereas  this  claim  against  the  Venezuelan  Government  was 
presented  to  this  Commission  by  the  Department  of  State  of  the  United 
States  of  America  through  its  agent; 

And  whereas  it  has  not  been  settled  by  diplomatic  agreement  or 
arbitration ; 

And  whereas  the  Orinoco  Steamship  Company,  as  evidence  shows,  is 
a  corporation  created  and  existing  under  and  by  virtue  of  the  laws  of 
the  State  of  New  Jersey  in  the  United  States  of  America,  there  only 
remains  to  be  examined  if  the  company  owns  the  claim  In-ought  l)efore 
the  Commission. 

Now,  whereas  almost  all  the  items  of  this  claim — at  all  events  those 
originated  before  the  1st  of  April,  1902— are  claims  that  the  Orinoco 
Shipping  and  Trading  Company,  Limited,  an  English  corporation, 
pretended  to  have  against  the  Government  of  Venezuela; 

And  whereas  on  the  said  April  1,  1902,  the  said  P^nglish  company 
for  the  sum  of  $1,000,000  sold  and  transferred  to  the  American  com- 
pany, the  claimant,  "all  its  claims  and  demands  either  against  the  Gov- 
ernment of  Venezuela  or  against  individuals,  firms,  and  corporations," 
these  claims  from  that  date  prima  facie  show  themselves  as  owned  by 
the  claimant. 

Whereas,  further  on,  it  is  true  that  according  to  the  admitted  and 
practiced  rule  of  international  law,  in  perfect  accordance  with  the 
general  principles  of  justice  and  perfect  equitv.  claims  do  not  change 


268  REPOUT  OF  ROBERT  C.  MORRIS. 

imtioiialitT  dv  the  I'iui  liiiit  thoir  t-onsecutive  owners  liave  a  diflferent 
♦  itiziMiship,  luH'ause  a  stato  is  not  a  claim  a,o-ent,  Imt  only,  as  tlioinflic- 
tion  of  a  wrono-  upon  its  citi/ons  is  an  injury  to  tlH>  stato  itself,  it  may 
secure  redress  for  the  injury  done  to  its  citizens,  and  not  for  the  injury 
done  to  the  citizens  of  another  state,  still  this  rule  may  be  overseen  or 
even  purposely  set  aside  b}-  a  treaty;  and  as  the  protocol  does  not 
speak,  as  is  generally  done  in  such  cases,  of  all  claims  o/" citizens,  etc., 
which  would  rightly  ])e  interpreted  ''all  claims  for  hijiiry  done  to  clt- 
/.;>v^s•,"  etc.,  but  uses  the  unusual  expression  ''all  claims  ovmedhy 
citizens  "  it  must  be  held  that  this  uncommon  expression  was  not  used 
without  a  determined  reason; 

And  whereas  the  evidence  shows  that  the  Department  of  State  of 
the  Ignited  States  of  America  knew  about  these  claims  and  took  gi'eat 
interest  in  them  (as  is  shown  by  the  diplomatic  correspondence  about 
these  claims,  presented  to  the  Commission  in  behalf  of  claimant),  and 
that  the  plenipotentiary  of  Venezuela  a  short  time  before  the  signing 
of  the  protocol,  in  his  character  of  United  States  envo}^  extraordinairy 
and  minister  plenipotentiary,  had  corresponded  with  his  Government 
about  these  claims,  and  that  even  as  late  as  Deceml)er  20,  1902,  and 
January  27,  1903,  one  of  the  directors  of  the  claimant  company,  J. 
Van  Vechten  Olcott,  wrote  about  these  claims  in  view  of  the  event  of 
arbitration  to  the  President  of  the  United  States  of  America,  it  is  not 
to  be  accepted  that  the  high  contracting  parties,  anxious,  as  is  shown 
by  the  history  of  the  protocol,  to  set  aside  and  to  settle  all  cjuestions 
ai)out  claims  not  yet  settled  l)etween  them,  should  have  forgotten  these 
very  important  claims  when  the  protocol  was  redacted  and  signed. 

And  therefore  it  may  safely  be  understood  that  it  was  the  aim  of 
the  high  contracting  parties  that  claims  as  these,  being  at  the  moment 
of  the  signing  of  the  protocol  owned  by  citizens  of  the  United  States 
of  North  America,  should  fall  under  the  jurisdiction  of  the  Commission, 
instituted  to  investigate  and  decide  upon  the  claims  the  high  contract- 
ing parties  wished  to  see  settled. 

And  therefore  the  jurisdiction  of  this  Commission  to  investigate  and 
decide  claims  owned  by  citizens  of  the  United  States  of  North  America 
at  the  moment  of  the  signing  of  the  protocol  has  to  be  recognized, 
vrithout  prejudice,  naturally,  of  the  judicial  power  of  the  Commission 
and  its  duty  to  decide  upon  a  basis  of  absolute  equity  when  judging 
about  the  rights  the  transfer  of  the  ownership  might  give  to  claimant 
against  third  parties. 

For  all  which  reasons  the  claims  presented  to  this  Commission  on 
behalf  of  the  American  company,  the  Orinoco  Steamship  Company, 
have  to  be  investigated  by  this  Commission  and  a  decision  has  to  be 
given  as  to  the  right  of  the  claimant  company  to  claim  what  it  does 
claim,  and  as  to  the  duty  of  the  Venezuelan  Government  to  grant  to 
the  claimant  company  what  this  company  claims  for. 

Now,  as  the  claimant  company  in  the  first  place  claims  for 
$1,209,700.05  as  due  for  damages  and  losses  caused  by  the  Executive 
decree  of  October  5,  1900,  having  this  decree  annulled,  a  contract 
concession  celeln-ated  on  May  26,  1891,  this  contract  concession  and 
this  decree  have  to  be  examined  and  it  has  to  be  investigated: 

Whether  this  decree  annulled  the  contract  concession; 

Whether  this  annulment,  when  stated,  caused  damages  and  losses; 

Whether  the  Government  of  Venezuela  is  liable  for  those  damages 
and  losses; 


REPORT  OF  ROBERT  C.  MORRIS.  269 

And,  in  the  case  of  this  liability  being  proved,  whether  it  is  to 
claimant  the  Government  of  Venezuela  is  liable  to  for  these  damages 
and  losses. 

And  whereas  the  mentioned  contract  concession  (a  contract  with  Mr. 
Ellis  Grell,  transferred  to  the  Venezuelan  citizen  Manuel  A.  Sanchez, 
and  approved  by  Congress  of  the  United  States  of  Venezuela  on  the 
26th  of  May,  1894)  reads  as  follows: 

The  Congress  of  the  United  States  of  Venezuela,  in  view  of  the  contract  celebrated 
in  this  city  on  the  17th  of  Januat-y  of  the  present  year  between  the  minister  of  the 
interior  of  the  United  States  of  "Venezuela  duly  authorized  by  the  chief  of  the 
National  Executive  on  the  one  part;  and  on  the  other,  Edgar  Peter  Ganteaunie, 
attorney  for  Ellis  Grell,  transferred  to  the  citizen  Manuel  A.  Sanchez,  and  the 
additional  article  of  the  same  contract  dated  10th  of  May  instant,  the  tenor  of  which 
is  as  follows: 

Dr.  Feliciano  Acovedo,  minister  of  the  interior  of  the  United  States  of  Venezuela, 
duly  authorized  by  the  chief  of  tlie  National  Executive  on  the  one  part;  and  Edgar 
Peter  Ganteaunie,  attorney  for  Ellis  Grell,  and  in  the  latter' s  name  and  representa- 
tion who  is  resident  in  Port  of  Spain,  on  the  other  i^art,  and  with  the  afhrmative 
vote  of  the  Government  council  have  celebrated  a  contract  set  out  in  the  following 
articles: 

Art.  1.  Ellis  Grell  undertakes  to  establish  and  maintain  in  force  navigation  by 
steamers  between  Ciudad  Bolivar  and  Maracaibo  within  the  term  of  six  months 
reckoned  from  the  date  of  this  contract,  and  in  such  manner  that  at  least  one  jour- 
ney per  fortnight  be  made  touching  at  the  ports  of  La  Vela,  Puerto  Cabello,  La 
Guaira,  Guanta,  Puerto  Sucre,  and  Carupano,  with  power  to  extend  the  line  to  any 
dulv  established  port  of  the  Repuljlic. 

Art.  2.  The  steamers  shall  navigate  under  the  Venezuelan  flag. 

Art.  3.  The  contractor  undertakes  to  transport  free  of  charge  the  packages  of 
mails  which  may  be  placed  on  Iward  the  steamers  by  the  authorities  and  merchants 
through  the  ordinary  post-offices;  the  steamers  thereby  acquiring  the  character  of 
mail  steamers,  and  as  such  exonerated  from  all  national  dues. 

Art.  4.  The  contractor  shall  draw  up  a  tariff  of  passages  and  freights  by  agreement 
with  the  Government. 

Art.  5.  The  company  shall  receive  on  board  each  steamer  a  government  employe 
with  the  character  of  fiscal  postmaster,  nominated  1)y  the  minister  of  finance,  with 
the  object  of  looking  after  the  proper  treatment  of  the  mails  and  other  fiscal  interests. 

The  company  shall  also  transport  public  employes  when  in  commission  of  the 
government  at  half  the  price  of  the  tariff,  provided  always  that  they  produce  an 
order  signed  l)y  the  minister  of  finance  or  by  one  of  the  presidents  of  the  states. 
Military  men  on  service  and  troops  shall  be  carried  for  the  fourth  part  of  the  tariff 
rates.  The  company  undertakes  also  to  carry,  gratis,  materials  of  war,  and  at  half 
freights  all  other  goods  which  may  be  shipped  for  account  and  by  order  of  the 
National  Government. 

Art.  6.  The  General  Government  undertakes  to  concede  to  no  other  hue  of  steam- 
ers any  of  the  benefits,  concessions,  and  exemptions  contained  in  the  present  contract 
as  compensation  for  the  services  which  the  company  undertakes  to  render  as  well  to 
national  interests  as  those  of  private  individuals. 

Art.  7.  The  Government  of  Venezuela  will  pay  to  the  contractor  a  monthly  sub- 
sidy of  four  thousand  bolivars  (4,000)  so  long  as  the  conditions  of  the  present  con- 
tract are  duly  carried  out. 

Art.  «.  The  National  Government  undertakes  to  exonerate  from  payment  ot 
import  duties  all  machinerv,  tools,  and  a<'cessories  which  may  be  imported  for  the 
use  of  the  steamers,  and  alfother  materials  necessary  for  their  repair,  and  also  under- 
takes to  permit  the  steamers  to  supply  themselves  with  coal  and  provisions,  etc.,  in 
the  ports  of  Curagao  and  Trinidad. 

Art.  9.  The  companv  shall  have  the  right  to  cut  from  the  national  forests  wood 
for  the  construction  of  "steamers  or  necessary  buildings  and  for  fuel  for  the  steamers 
of  the  line.  ,      .  j     n 

Art.  10.  The  officers  and  crews  of  the  steamers,  as  also  the  woodcutters  and  all 
other  employes  of  the  company,  shall  be  exempt  from  military  service  except  in 
cases  of  international  war.  r  . .     r>       ir 

Art.  11.  The  steamers  of  the  company  shall  enjoy  in  all  the  ports  of  the  Republic 
the  same  freedom  and  preferences  by  law  established  as  are  enjoyed  by  the  steamers 
of  lines  established  with  fixed  itinerary. 


L>70  REPORT    OF    ROBERT    C.   MORRIS. 

Akt.  12.  While  tho  f::ovrrniut'nt  fixes  delinitely  the  transshipment  ports  for  mer- 
chandise from  abroad,  and  while  they  are  making  the  necessary  instalations,  the 
steamers  of  this  line  shall  be  allowed  to  call  at  the  ])orts  of  Cura(;ao  and  Trinidad, 
and  any  one  of  the  steamers  leaving  Trinidad  may  also  navigate  by  the  channels  of 
tho  Macarco  and  IVdernales  of  the  River  Orinoco  in  conformity  with  the  formalities 
whieli  by  special  resolution  maybe  imposed  by  the  minister  (jf  finance  in  order  to 
prevent  contraband,  and  to  safeguard  liscal  interests;  to  all  which  conditions  the 
contrai'tor  agrees  beforehand. 

AuT.  \'A.  This  contract  siuiU  remain  in  force  for  fifteen  years,  reckoned  from  the 
date  of  its  approbation,  and  may  be  transferred  by  the  contractor  to  another  jjcrson 
or  corporation  upon  prt>vious  notice  to  the  (Tovernment. 

Akt.  14.  Disputes  and  controversies  which  may  arise  with  regard  to  the  interjjre- 
tation  or  execution  of  thi-i  contract  shall  be  resolved  by  the  tribunals  of  the  Republic 
in  accordance  with  the  laws  of  the  nation,  and  shall  not  in  any  case  be  considered  as 
a  motive  fnr  international  reclamations. 

Two  ct^piesof  this  contract,  of  the  same  tenor  and  effect,  were  made  in  Caracas  the 
seventeenth  day  of  January,  1894. 

(S'g'd.)  Edward  P.  Canteaume. 

(S'g'd.)  SoLiciANo  Acovado. 

Additionai,  artici-e.  Between  the  minister  of  the  interior  of  the  United  States  of 
Venezuela  and  Citizen  INIanuel  A.  Sanchez,  concessionaire  of  Mr.  Ellis  Grell,  have 
agreed  to  nuxlify  the  eighth  article  of  the  contract  made  on  the  17tli  day  of  January, 
of  the  present  year,  for  the  coastal  navigation  between  Ciudad  Bolivar  and  Maracaibo 
on  the  following  terms. 

Art.  8.  The  (Tovernment  undertakes  to  exonerate  from  payment  of  import  duties 
the  machinery,  tools,  and  articles  which  may  be  imported  for  the  steamers,  and  all 
other  materials  destined  for  the  repairs  of  the  steamers;  while  the  (Tovernment  fixes 
the  points  of  trans[)ort  and  coaling  ports,  the  contractor  is  hereby  permitted  to  take 
coal  and  provisions  for  the  crew  in  the  ports  of  Curacao  and  Trinidad. 

(S'g'd.)  Jose  R.  Nunez. 

(S'g'd. )  M.A.Sanchez. 

Caka^as,  10th  May,  1894. 

And  whereas  the  mentioned  Executive  decree  of  October  5,  1900, 
reads  as  follows: 


Article  1.  The  decree  of  the  1st  of  July,  1893,  which  prohibited  the  free  naviga- 
tion of  theMacareo,  Pedernales,  and  other  navigable  waterways  of  the  River  Orinoco 
is  abolished. 

Art.  2.  The  minister  of  interior  relations  is  charged  with  the  execution  of  the 
present  decree. 

Now,  whereas,  in  regard  to  the  said  contract  it  has  to  be  remarked 
that  in  ahiiost  all  the  arguments,  documents,  memorials,  etc.,  pre- 
sented on  behalf  of  the  claimant  it  is  designed  as  a  concession  for  the 
exclusive  navigation  of  the  Orinoco  Kiver  by  the  Macareo  or  Peder- 
nales channels,  whilst  in  claimants'  memorial  it  is  even  said  that  the 
chief,  and,  indeed,  only  value  of  this  contract  was  the  exclusive  right 
to  navigate  the  Macareo  and  Pedernales  channels  of  the  River  Orinoco, 
and  that,  according  to  claimant,  this  concession  of  exclusive  right  was 
annulled  by  the  aforesaid  decree,  and  that  it  is  for  the  losses,  that 
were  the  consequence  of  the  annulment  of  this  concession  of  exclusive 
right,  that  damages  were  claimed,  the  main  question  to  be  examined  is 
whether  the  Venezuelan  Government  hy  said  contract  gave  a  conces- 
sion for  the  exclusive  navigation  of  said  channels  of  said  river,  and 
whether  this  concession  of  exclusive  navigation  was  annulled  by  said 
decree. 

And,  whereas,  the  contract  shows  that  Ellis  Grell  (the  original  con- 
tractor) pledged  hiniself  to  establish  and  maintain  in  force  navigation 
by  steamers  between  Ciudad  BoHvar  a,nd  Maracaibo,  touching  at  the 


REPORT  OF  ROBERT  C.  MORRIS.  271 

ports  of  La  Vela,  Puerto  Cabello,  La  Guaira,  Guanta,  Puerto  Sucre, 
and  Carupano,  and  to  fultill  the  conditions  mentioned  in  articles  2,  3, 
4,  and  5  whilst  the  Venezuelan  Government  promised  to  g-rant  to  Grell 
the  benefits,  concessions  and  exemptions  outlined  in  articles  7,  8,  9, 11, 
and  12,  and  in  article  0  pledges  itself  to  concede  to  no  other  line  of 
steamers  an}^  of  the  l)enefits,  concessions,  and  exemptions  contained  in 
the  contract,  the  main  object  of  the  contract  appears  to  be  the  assur- 
ance of  a  regular  conununication  by  steamer  from  Ciudad  Bolivar  to 
Maracaibo  touching  the  dujy  established  Venezuelan  ports  between 
these  tw^o  cities.  J'or  the  navigation  between  these  duly  established 
ports  no  concession  or  permission  was  wanted;  but  in  compensation  to 
Grell's  engagement  to  establish  and  maintain  in  force  for  fifteen  years 
(art.  13)  this  communication,  the  Venezuelan  Government  accorded 
hini  some  privileges,  which  it  undertook  to  grant  to  no  other  line  of 
steamers. 

Whereas,  therefore,  this  contract  in  the  whole  does  not  show  itself  as 
a  concession  for  exclusive  navigation  of  an}^  waters,  but  as  a  contract 
to  establish  a  regular  conununication  by  steamers  between  the  duly 
established  principal  ports  of  the  Republic,  the  pretended  concession 
for  exclusive  navigation  of  the  Macareo  and  Pedernales  channels  must 
be  sought  in  article  12  of  the  contract,  the  only  article  in  the  whole 
contract  in  which  mention  of  them  is  made. 

And  whereas  this  article  in  the  English  version  in  claimant's 
memorial  reads  as  follows: 

117/ (7f  the  Government  fixes  definitel}'  the  transshipment  ports  for  merchandise 
from  al)road,  and  while  they  are  making  the  necessary  installations,  the  steamers  of 
this  line  shall  be  allowed  to  call  at  the  ports  of  Curasao  and  Trinidad,  and  any  one 
of  the  steamers  leaving  Trinidad  may  also  navigate  by  the  channels  of  the  Macareo 
and  Pedernales  of  the  River  Orinoco,  etc. 

It  seems  clear  that  the  permission  in  this  article— by  which  article 
the  permission  of  navigating  the  said  channels  was  not  given  to  the 
claimant  in  general  terms  and  for  all  its  ships  indiscriminately,  but 
only  for  the  ships  leaving  Trinidad — would  only  have  force  for  the 
time  till  the  Government  w  ould  have  fixed  definitely  the  transshipment 
ports,  wliich  it  might  do  at  any  luoment,  and  till  the  necessary  installa- 
tions were  made,  and  not  for  the  whole  term  of  the  contract,  which, 
according  to  article  13,  would  remain  in  force  for  fifteen  years. 

And  whereas  this  seems  clear  when  reading  the  English  version  of 
the  contract  as  cited  in  the  memorial,  it  seems,  if  possible,  still  more 
evident  when  reading  the  original  Spanish  text  of  this  article,  of  which 
the  above-mentioned  English  version  gives  not  a  quite  correct  transla- 
tion, from  which  Spanish  text,  reading  as  follows: 

Art.  12.  Mientras  el  Gobierno  fija  definitivamente  los  puertos  de  trasbordo  para 
las  mercancfas  procedentes  del  extranjero,  y  mientras  bajo  las  necesarias  instala- 
ciones,  los  serd  permitido  a  los  buqnes  de  la  linea,  tocar  en  los  pnertos  de  Cnracho  y 
de  Trinidad,  pudiendo  adem^s  navegar  el  vapor  qne  saiga  de  la  ultima  antdla  por  los 
cafios  de  Macareo  y  de  Pedernales  del  Rio  Orinoco,  previas  las  formal idades  que  por 
resolucion  especial  di(;tar:i  el  Ministerio  de  Hacienda  para  impedir  el  contrabando 
en  resguardo  de  los  intcreses  riscales,  y  d  las  cuales  de  antemano  so  somete  el 
contratista. 

The  words,  ''el  vapor  que  saiga  de  la  ultima  antilla,"  being  given 
in  the  English  version  as  '''any  <me  of  the  steamei-s  U^iiving  Trinidad,"  it 
<;an  not  be  misunderstood  that  this  ''el  vapor"  is  thesteamei-  that  bad 
called  at  Trinidad  according  to  the  permission  given  for  the  special 
term  that  the  "while"  ("mientras")  would  la,st;  wherefor  it  seems 


1>72  KKi'oirr  of  kobert  c.  morris. 

iiui)ossiblc  that  the  ponnissiou  given  in  article  12  only  for  the  time 
thoro  would  exist  eircunistances  which  the  other  party  might  change 
at  any  moment,  could  ever  have  been  the  main  object,  and,  as  is  stated 
in  the  memorial,  "the  chief  and,  indeed,  only  value"  of  a  contract  that 
was  first  made  for  the  term  of  fifteen  years,  which  term  later  on  even 
w  as  prolonged  to  twenty-one  years. 

And  whereas,  therefoiv,  it  can  not  be  seen  how  this  contract  concession 
t\»r  establishing  and  maintaining  in  {orca  for  ffteen  years  a  comnuini- 
cation  between  the  duly  established  ])ort8  of  Venezuela  can  be  called 
a  concession  foi-  the  exclusive  navigation  of  the  said  channels,  when 
the  permission  to  navigate  these  channels  was  only  annexed  to  the 
l)ermission  to  call  at  Trinidad  and  would  end  with  that  permission, 
whilst  the  obligation  to  navigate  between  the  ports  of  Venezuela  from 
Ciudad  Bolivar  to  IMaracaibo  would  last. 

And  whereas  on  the  contrary  all  the  stipulations  of  the  contract 
are  quite  clear  when  holding  in  view  the  purpose  why  it  was  given, 
viz,  to  establish  and  maintain  in  force  a  communication  between  the 
dulv  established  ports  of  Venezuela— i.  e.,  a  i-egular  coastal  service,  ))y 
steamers,  because  to  have  and  retain  the  character  and  the  rights  of 
ships  bound  to  coastal  service  it  was  necessary  that  the  ships  should 
navigate  under  Venezuelan  flag-  (art.  2),  that  they  should  have  a  special 
permission  to  call  at  Curacao  and  Trinidad  to  supply  themselves  with 
coal  and  provisions  (art.  8)— which  stipulation  otherwise  would  seem 
without  meaning  and  quite  absurd,  as  no  ship  wants  a  special  permis- 
sion of  any  Government  to  call  at  the  ports  of  another  Government — 
and  to  call  at  the  same  foreign  ports  for  transshipment  while  the  Gov- 
ernment fixed  definitely  the  transshipment  ports  (art.  12),  in  the  same 
way,  during  thai  time^ vl  special  permission  was  necessary  for  the  ship 
leaving  Trinidad  to  hold  and  retain  this  one  right  of  ships  bound  to 
coastal  service,  to  navigate  by  the  channels  of  Macareo  and  Pedernales, 
which  special  permission  would  not  be  necessitated  any  longer  as  soon 
as  the  Government  would  fix  definitely  the  Venezuelan  ports  that 
wouldserveastransshipmentports,  because  then  they  would/y(?>\sdenjoy 
the  right  of  all  ships  bound  to  coastal  service,  viz,  to  navigate  through 
the  mentioned  channels.  What  is  called  a  concession  for  exclusive 
navigation  of  the  mentioned  channels  is  shown  to  be  nothing  but  a 
permission  to  navigate  these  channels  as  long  as  certain  circumstances 
should  exist. 

And  w^hereas,  therefore,  the  contract  approved  by  decree  of  the  8th 
of  June,  181>4,  never  was  a  concession  for  the  exclusive  navigation  of 
said  channels  of  the  Orinoco,  and  whereas  the  decree  which  reopened 
these  channels  for  free  navigation  could  not  annul  a  contract  that 
never  existed,  all  damages  claimed  for  the  annulling  of  a  concession 
for  exclusive  navigation  of  the  Macareo  and  Pedernales  channels  of 
the  Orinoco  Kiver  must  be  disallowed. 

Now,  whereas,  it  might  be  asked,  if  the  permission  to  navigate  by 
those  channels,  given  to  the  steamer  that  on  its  coastal  trip  left  Trini- 
dad, was  not  one  of  the  "  benefits,  concessions,  and  exemptions"  that 
the  Government  in  article  6  promised  not  to  concede  to  any  other  line 
of  steamers;  it  has  not  to  be  forgotten  that  in  article  12  the  Govern- 
ment did  not  give  a  general  permission  to  navigate  by  the  said  channels, 
but  that  this  whole  article  is  a  temporal  measure  taken  to  save  the 
character  and  the  rights  of  coastal  service,  to  the  service  which  was 
the  object  of  this  contract,  during-  the  time  the  Government  had  not 


REPORT  OF  ROBERT  C.  MORRIS.  273 

definitely  fixed  the  transshipment  ports;  and  that  it  was  not  an  ele- 
mentary part  of  tlie  concession,  that  would  last  as  long  as  the  conces- 
sion itself,  but  a  mere  arrangement  by  which  temporaril}^  the  right  of 
vessels  bound  to  coastal  service,  viz,  to  navigate  said  channels,  would 
be  safeguarded  for  the  vessel  that  left  Trinidad  as  long  as  the  vessels 
of  this  service  would  be  obliged  to  call  at  this  island,  and  that  therefore 
the  benefit  and  the  exemption  granted  1)}"  this  article  was  not  to  navi- 
gate hy  said  chcmnels,  but  to  hold  the  character  and  right  of  a  coastal 
vessel  notioitJistanding  having  called  at  the  foreign  j)ort  of  Trinidad^ 
and  as  this  privilege  was  not  afl^ected  by  the  reopening  of  the  channels 
to  free  navigation,  and  the  Government  by  aforesaid  decree  did  not 
give  an}"  benefit,  concession,  and  exemption  granted  by  this  concession 
to  any  other  line  of  steamers,  a  claim  for  damages  for  the  reopening 
of  the  channels  based  on  article  6  can  not  be  allowed.  It  ma}^  be  that 
the  concessionar}^  and  his  successors  thought  that  during  all  the  twenty- 
one  years  of  this  concession  the  Government  of  Venezuela  would  not 
definitely  fix  the  transshipment  ports,  nor  reopen  the  channels  to  free 
navigation,  and  those  thoughts  based  a  hope  that  was  not  fulfilled  and 
formed  a  plan  that  did  not  succeed;  but  it  would  be  a  strange  appli- 
ance of  absolute  equity,  to  make  the  Government  that  g-rants  a  con- 
cession liable  for  the  not  realized  dreams  and  vanished  "  chateaux  en 
Espagne"  of  inventors,  promoters,  solicitors,  and  purchasers  of 
concessions. 

But  further  on,  even  when  it  might  be  admitted  that  the  reopening 
of  the  channels  to  free  navigation  might  furnish  a  ground  to  base  a 
claim  on  {quod  7ion)  whilst  investigating  the  right  of  claimant  and  the 
liability  of  the  Venezuelan  Government,  it  has  not  to  be  forgotten 
that  besides  the  already  mentioned  articles  the  contract  has  another 
article,  viz,  article  14,  b}'  which  the  concessionary  pledged  himself  not 
to  submit  any  dispute  or  controversies  which  might  arise  with  regard 
to  the  interpretation  or  execution  of  this  contract  to  any  other  tribu- 
nal but  to  the  tribunals  of  the  Republic,  and  in  no  case  to  consider 
these  disputes  and  controversies  a  motive  for  international  reclamation; 
which  article,  as  the  evidence  shows,  was  repeatedly  disregarded  and 
trespassed  upon  by  asking  and  urging  the  intervention  of  the  English 
and  United  States  Governments  without  ever  going  for  a  decision  to 
the  tribunals  of  Venezuela;  and  as  the  unwillingness  to  comply  with 
this  pledged  duty  is  clearly  shown  by  the  fact  that  the  English  (Gov- 
ernment called  party's  attention  to  this  article,  and,  quotino-  the  article, 
added  the  following  words,  which  certainly  indicated  the  only  just 
point  of  view  fiom  which  such  pledges  should  be  regarded: 

Althoufjh  th(>  jreneral  international  rights  of  His  Majesty's  Govcrnmont  are  in 
nowise  nnxlificd  l)y  the  provisions  of  this  document  to  which  they  were  not  a  party 
the/'irl  llidt  (lie  coiiijxiH!/  have  so  far  m  l(ty  in  llieir  power  dcllheralelij  ronfrarted  llieiiiselirs 
oul'of  eveni  remedial  rrivvrse  in.  case  of  dispute,  erre]>t  that  vhirh  is  specified  in  article  If. 
of  the  contract,  is  undonbtediv  an  element  to  be  taken  into  serious  consideration 
when  they  subsefjuently  appeal  for  the  intervention  of  His  Majesty's  Government. 

And  whereas  the  force  of  this  sentence  is  certainly  in  nowise  weak- 
ened bv  the  remai-k  made  against  it  on  the  side  of  the  concessionary 
that  "the  terms  of  article  14  of  the  contract  have  absolutely  no  con- 
nection whatever  with  the  matter  at  issue,  because  "  no  dovht  or  covtro- 
ver^y  has  arisen  with  respect  to  the  interpretaiian  and  execution  of  the 
contract,"  but  that  what  has  happened  is  this,  that  the  Venezuelan 
Government  has,  by  a  most  dishonest  and  cunningly  devised  trick, 

S.  Doc.  317,  58-2 18 


i>7  t  ui;i';>Ki'  OK   uoiniKT  c.  morris, 

dclrauded  tlh>  cuuipaiiv  to  the  extent  of  cnl I /■< I ij  mill !fy!n<j  a  conco,^- 
sion  which  it  had  lo<>-aily  uc(iiiired  at  a  very  heavy  eost/'  whereas,  on 
the  eontrarv,  it  is  quite  elear  that  the-  oidy  (luestion  at  issue  was 
whether,  in"  article  12  in  connection  with  article  6,  a  concession  for 
exchisive  naviuation  Avas  g-iven  or  not — ero'o,  a  question  of  doubt  and 
controversv  about  the  interpretation. 

And  whereas  the  following  words  of  the  English  Government, 
addressed  to  the  concessionary,  may  well  be  considered:  ''The  com - 
]x\ny  does  not  appear  to  have  exhausted  the  legal  remedies  at  their 
disposal  ])efore  the  ordinary  tribunals  of  the  country,  and  it  would  be 
contrary  to  intei-national  practice  for  His  Majesty's  Government  for- 
mally to  intervene  in  their  behalf  through  the  diplomatic  channel 
unless  and  luitil  they  should  be  in  a  position  to  show  that  they  had 
exhausted  their  ordinary  legal  remedies  with  a  result  that  a ^/r/w/a/aa'c^ 
case  of  failure  or  denial  of  justice  remained." 

For  whereas,  if  in  general  this  is  the  only  just  standpoint  from  which 
to  view  the  right  to  ask  and  to  grant  the  means  of  diplomatic  inter- 
vention and  in  consequence  cam  <]_uo  of  arbitration,  how  much  the 
more  where  the  recourse  to  the  tribunals  of  the  country  w^as  formally 
pledged  and  the  right  to  ask  for  intervention  solemidy  renounced  by 
contract,  and  where  this  breach  of  promise  was  formally  pointed  to 
by  the  Government  whose  intervention  was  asked;  whereas,  therefore, 
the  question  imposes  itself,  w^hether  absolute  equity  ever  w^ould  per- 
mit that  a  contract  be  willingly  and  purposely  trespassed  upon  by  one 
party  in  view  to  force  its  binding  power  on  the  other  party; 

And  whereas  it  has  to  be  admitted  that,  even  if  the  trick  to  change 
a  contract  for  regular  coastal  service  into  a  concession  for  exclusive 
navigation  succeeded  (quod  non),  in  the  face  of  absolute  equity  the 
trick  of  making  the  same  contract  a  chain  for  one  party  and  a  screw 
press  for  the  other  never  can  have  success.  It  must  be  concluded  that 
article  14  of  the  contract  disables  the  contracting  parties  to  base  a  claim 
on  this  contract  before  any  other  tribunal  than  that  which  they  have 
freely  and  deliberately  chosen,  and  to  parties  in  such  a  contract  must 
be  applied  the  words  of  the  Hon.  Mr.  Finlay,  United  States  Com- 
missioner in  the  Claims  Commission  of  1889,  "So  they  have  made 
their  bed  and  so  they  must  lay  in  it." 

But  there  is  still  more  to  consider. 

For  w^hereas  it  appears  that  the  contract  originally  passed  with 
Crell  was  legally  transferred  to  Sanches  and  later  on  to  the  English 
companv,  "The  Orinoco  Shipping  and  Trading  Company,  Limited, 
and  on  >he  1st  day  of  April,  1902,  was  sold  by  this  company  to  the 
American  companv,  the  claimant; 

But  whereas  article  13  of  the  contract  says  that  it  might  l)e  trans- 
ferred to  another  person  oi-  corporation  upon  prevlom  notice  to  the 
Government,  while  the  evidence  shows  that  this  notice  has  not  been 
previously  (indeed  ever)  given;  the  condition  on  which  the  contract 
might  be  transferred  not  being  fultilled,  the  "Orinoco  Shipping  and 
Trading  Company,  Limited,"  had  no  right  to  transer  it,  and  this  trans- 
fer of  the  contract  without  previous  notice  must  be  regarded  as  null 
and  utterly  worthless; 

Wherefore  even  if  the  contract  might  give  a  ground  to  the'above- 
examined  claim  to  "The  Orinoco  Shipping  and  Trading  Company, 
Limited."  (once  more,  quod  non),  the  claimant  company  as  quite  alien 
to  the  contract  could  certainly  never  base  a  claim  on  it. 


REPORT  OF  ROBERT  C.  MORRIS.  275 

For  all  which  reason.s  every  claim  of  the  Orinoco  Steamship  Com- 
pan}^  again.st  the  Kepublic  of  the  United  States  of  Venezuela  for  the 
annulment  of  a  concession  for  the  exclusive  navigation  of  the  Macareo 
and  Federnales  channels  of  the  Orinoco  has  to  be  disallowed. 

As  for  the  claim  for  100,000  bolivars  or  $10,219.19  overdue  on  a 
transaction  celebrated  on  May  10,  1900,  between  the  Orinoco  Shipping 
and  Trading  Company,  Limited,  and  the  Venezuelan  Government; 

Whereas  these  100,000  Ijolivars  are  these  mentioned  in  letter  h  of 
article  2  of  said  contract,  i-eading  as  follows: 

{h)  One  hundred  thousand  bolivars  (100,000)  wliifli  wliall  Iw  paid  in  accordance 
with  such  arrangements  as  the  parties  hereto  may  agree  upon  on  the  day  stipulated 
in  the  decree  twenty-third  of  April,  ultimo,  relative  to  claims  arising  froui  damages 
caused  during  the  war,  or  by  other  cause  whatsoever; 

And  whereas  nothing  whatever  of  anj^  arrangement,  in  accordance 
Avith  which  it  was  stipulated  to  pav,  appears  in  the  evidence  [)efore  the 
Conmiission,  it  might  be  asked  if,"^on  the  day  this  claim  was  filed,  this 
indebtedness  was  proved  compellable; 

Whereas,  further  on,  in  which  ever  way  this  question  may  be  decided, 
the  contract  has  an  article  4,  in  which  the  contracting  parties  pledged 
themselves  to  the  following:  'W\\  doubts  and  controversies  which  may 
arise  with  respect  to  the  interpretation  and  the  execution  of  this  con- 
tract shall  be  decided  by  the  tribunals  of  Venezuela  and  in  conformity 
with  the  laws  of  the  Republic,  without  such  mode  of  settlement  being 
considered  motive  of  international  claims,"  while  it  is  shown  in  the 
diplomatic  correspondence  brought  before  the  Commission  on  behalf 
of  claimant,  that  in  December,  1902,  a  formal  petition  to  make  it 
international  claim  was  directed  to  the  Government  of  the  United 
States  of  America  without  the  question  having-  been  brought  before 
the  tri))unals  of  Venezuela,  which  fact  certainly  constitutes  a  flagrant 
breech  of  the  contract  on  which  the  claim  was  based; 

And  whereas,  in  addition  to  everything-  that  was  said  about  such 
clauses  here  above,  it  has  to  be  considered  what  is  the  real  meaning  of 
such  a  stipulation; 

And  whereas  when  parties  agree  that  doubts,  disputes,  and  contro- 
versies shall  only  be  decided  by  a  certain  designated  third,  they 
in)plicitly  agree  to  recognize  that  there  properly  shall  be  no  claim 
from  one  party  against  the  other  but  for  what  is  due  as  a  result  of  a 
decision  on  any  doubts,  disputes,  or  controversies  l)y  that  one  desig- 
nated third; 

For  which  reason,  in  addition  to  everything  that  was  said  already 
upon  this  (juestion  heretofore^  in  questions  on  claims  based  on  a  con- 
tract wherein  such  a  stipulation  is  made,  absolute  e((uity  does  not 
allow  to  recognize  such  a  claim  between  such  parties  before  the  con- 
ditions are  i-ealized,  which  in  that  cojitract  they  themselves  made  eon- 
clitoneK  f<lne  (jiu>  iiov  for  th(>  existence  of  a  claim; 

And  whereas,  further  on,  even  in  the  case  the  contract  did  not  con- 
tain such  a  chiusc,  and  that  the  arrangements,  in  accordance  to  w  hich 
it  was  stipuhited  to  pa3'  were  connnunicated  to  and  pi-oved  before  this 
Conunission,  it  ought  to  be  considered  that  if  there  existed  here  a 
recognized  and  compellabh>,  inde))tedness,  it  woidd  be  a  debt  of  the 
Goverrunent  of  Venezuela  to  the  Orinoco  Shipping  and  Tradiiig 
Company; 

For  whereas  it  is  true  that  evidence  shows  that  on  the  1st  of  April, 
1902,  all  the  credits  of  that  company  were  transferred  to  the  claimant 


'270  KFPOKT  OF  ROBERT  C.  MORRIS. 

rompany,  it  is  not  le.s.s  true  that,  as  showed  by  rvidonce,  this  transfer 
Avas  never  notified  to  the  (Tovernnient  of  Venezuela; 

And  whereiis,  aeeordino-  to  Venezuelan  law,  in  perfect  accordance 
with  the  })rincipl(\s  of  justice  and  equity  recog'nized  and  proclaimed  in 
the  codes  of  almost  all  civilized  nations,  such  a  transfer  gives  no  right 
against  the  debtor  when  it  was  not  notified  to  or  ac^cepted  by  that 
debtor: 

And  whereas  Ikmc  it  can  not  be  objected  that  according  to  the  pro- 
tocol no  regard  has  to  be  taken  of  provisions  of  locid  legislation,  because 
the  words  "the  connnissioners  or  in  case  of  their  disagreement  the 
umi)ire  shall  decide  all  claims  upon  a  l)asis  of  absolute  ecjuity,  without 
regard  to  oltject/ons  of  a  technical  nature  or  of  the  provisions  of  local 
legislation,"'  clearly  have  to  1)6  understood  in  the  way  that  questions 
of  technical  nature  or  the  provisions  of  local  legislation  should  not  be 
tak(Mi  into  regard  when  they  were  ohjectlonx  against  the  rules  of  abso- 
lute etjuity,  for  in  case  of  any  other  interpretation  the  fidlilling  of  the 
task  of  this  Commission  would  be  an  impossibility,  as  the  question  of 
American  citizenship  coidd  never  be  proved  without  regard  to  the  local 
legislation  of  the  United  States  of  America,  and  this  being  prohibited 
by  tiie  protocol  all  claims  would  have  to  be  disallowed,  as  the  American 
citizenship  of  the  claimant  would  not  be  proved;  and  as  to  technical 
questions  it  might  then  be  maintained  (as  was  done  in  one  of  the  papers 
brought  before  this  Commission  on  behalf  of  a  claimant  in  one  of  the 
tiled  claims)  that  the  question  whether  there  was  ajiyyw>/that  claimant 
had  a  right  to  a  claim  was  a  mere  technical  question; 

And  whereas,  if  the  provisions  of  local  legislation  far  from  being 
objections  to  the  rules  of  absolute  equity  are  quite  in  conformit}'  with 
those  rules,  it  would  seem  absolutely  in  contradiction  with  this  equity 
not  to  apply  its  rules,  because  they  were  recognized  and  proclaimed  by 
the  local  legislation  of  Venezuela; 

And  whereas  the  transfer  of  credits  from  "The  Orinoco  Shipping 
and  Trading  Compan}^ "  to  "The  Orinoco  Steamship  Companj' "  neither 
was  notified  to  or  accepted  by  the  Venezuelan  Government,  it  can  not 
give  a  right  to  a  claim  on  behalf  of  the  last-named  company  against  the 
Government  of  Venezuela;  for  all  which  reasons  the  claim  of  the  Ori- 
noco Steamship  Company,  Limited,  against  the  Government  of  Vene- 
zuela, based  on  the  transaction  of  May  10,  1900,  has  to  be  disallowed. 

In  the  next  place  the  company  claims  $147,038.79,  at  which  sum  it 
estimates  the  damages  and  losses  sustained  during  the  last  revolution, 
including  services  rendered  to  the  Government  of  Venezuela; 

Now,  whereas  this  claim  is  for  damages  and  losses  suffered  and  for 
services  rendered  from  ,Iune,  1900,  wiiile  the  existence  of  the  com- 
pany only  dates  from  .January  31,  19(»2,  and  the  transfer  of  the  credits 
of  the  Orinoco  Shipping  and  Trading  Company,  Limited,  to  claim- 
ant took  place  on  the  1st  of  April  of  this  same  year,  it  is  clear  from 
what  heretofore  was  said  about  the  transfer  of  these  credits  that 
all  items  of  this  claim  based  on  obligations  originated  before  said 
April  1,  1902,  and  claimed  by  claimant  as  indebtedness  to  the  afore- 
named company  and  transferred  to  claimant  on  said  April  1,  have  to 
be  disallowed,  as  the  ti'ansfer  was  never  notified  to  or  accepted  by  the 
Venezuelan  (iovei-nment.  As  to  the  items  dating  after  the  1st  of 
April,  1902,  in  the  fii-st  place  the  claimant  claims  for  detention  and 
hire  of  the  steamships  Xlaspnrro  from  May  1  to  September  18,  1902 
(141  days),  at  loO  pesos  daily,  14:,<J00  pesos,  and  for  detention  and 


REPORT  OF  ROBERT  C.  MORRIS.  277 

hire  of  the  steamship  Socorro  from  March  21  to  November  5,  1902 
(229  days),  22,900  pesos,  together  37,000  pesos,  equal  to  $28,401.55, 

And  whereas  it  is  proved  by  evidence  that  said  steamers  have  been 
in  service  of  the  National  Government  for  the  time  above  stated; 

And  whereas  nothing  in  the  evidence  shows  any  obligation  on  the 
part  of  the  owners  of  the  steamers  to  give  this  service  gratis,  even  if 
it  were  in  behalf  of  the  Commonwealth; 

Whereas  therefore  a  remuneration  for  that  service  is  due  to  the 
owners  of  these  steamers^  the  Venezuelan  Government  owes  a  remu- 
neration for  that  service  to  the  owners  of  the  steamers; 

And  whereas  these  steamers,  by  contract  of  April  1,  1902,  were 
bought  b}'  claimant  and  claimant  therefore  from  that  da}'  was  owner 
of  the  steamers,  this  remuneration  from  that  date  is  due  to  claimant; 

And  whereas  in  this  case  it  differs  not  that  the  transfer  of  the  steam- 
ers was  not  notified  to  the  Venezuelan  Government,  as  it  was  no  trans- 
fer of  a  credit,  but  as  the  credit  was  born  after  the  transfer,  and  as  it 
was  not  in  consequence  of  a  contract  between  the  Government  and 
any  particular  person  or  company,  but,  as  evidence  shows,  because  the 
Government  wanted  the  steamer's  service  in  the  interest  of  its  cause 
against  revolutiouar}-  forces,  and  whereas  for  this  forced  detention 
damages  are  due,  those  damages  may  be  claimed  by  him  who  suffered 
them,  in  this  case  the  owners  of  the  steamers; 

And  whereas  the  argument  of  the  Venezuelan  Government  that  it 
had  counterclaims  can  in  nowise  affect  this  claim,  as  those  counter- 
claims the  Venezuelan  Government  alludes  to  and  Avhich  it  pursues 
before  the  tribunals  of  the  country,  appear  to  bo  claims  against  the 
Orinoco  Shijjping  and  Trading  Company  and  not  against  claimant; 

And  whereas  it  differs  not  whether  claimant— as  the  Government 
affirms  and  as  evidence  seems  clearly  to  show — if  not  taking  part  in 
the  revolution,  at  all  events  favored  the  revolutionary  party,  because 
the  ships  were  not  taken  and  confiscated  as  hostile  ships,  but  were 
claimed  by  the  Government,  evidence  shows,  because  it  wanted  them 
for  the  use  of  political  interest,  and  after  that  use  were  returned  to 
the  owners;  for  all  these  reasons  there  is  due  to  claimant  from  the  side 
of  the  Venezuelan  Government  a  remuneration  for  the  service  of  the 
steamer  Ma.sparro  and  Socorro,  respectivelv,  from  May  1  to  Septem- 
ber IS,  1902  (Ul  days),  and  from  April  1  to  November  5,  1902  (219 
days),  together  300  days; 

And  whereas,  according  to  evidence,  since  1894:  these  steamers  might 
be  hired  bv  the  Government  for  the  price  of  4<>()  l)olivars,or  100  pesos, 
daily,  thisprice  seems  a  fair  award  for  the  forced  detention;  wiierefore 
for  the  detention  and  use  of  the  steamers  Ma.sparro  and  S'xyrro  the 
Venezuelan  Government  owes  to  claimant  30,000  pesos,  or  Jd27,092.31. 

Further  on  claimant  claims  $2,520.50  for  repairs  to  the  J/t/.s/nirro 
and  $2,932.98  for  repairs  to  the  Socorro,  necessitated,  as  claimant 
assures,  by  the  ill  usage  of  the  vessels  while  in  the  hands  ol"  the 
Vevezuelan  Govcrrnnisnt. 

Now,  whereas  evichuice  only  shows  that  after  being  returned  to 
claimant  the  steamers  required  lepairs  at  this  cost,  l>ut  in  nowise^ 
that  those  repairs  were  necessitatcHl  by  ill  usage  on  the  side  of  the 
Government; 

And  Avh(M'eas  evidence  does  not  show  in  which  static  they  were 
received  and  in  which  state  they  were  returned  to  the  Government; 

And  whereas  it  is  not  proved  that  in  consequence  of  this  use  by  the 


278  EEPORT  OF  ROBERT  C.  MORRIS. 

Govornmeut  tlicy  sutlVrecl  luoro  daniat;e.s  than  those  that  are  the  con- 
so([ueiu-e  of  common  and  hiwful  use  durinj;-  the  time  the}^  were  used 
by  the  (xovernment,  for  which  damages  in  case  of  hire  the  Govern- 
ment would  not  be  responsibk\ 

Wliere  the  i)rice  for  wliich  the  steamers  might  be  hired  is  allowed 
for  the  use,  while  no  extraordinary  damages  are  proved,  equity  will 
not  allow  to  dt>clare  the  Venezuelan  (Tovernment  liable  for  these 
repairs;  wherefore  this  item  of  the  claim  has  to  })e  disallowed. 

Evidence  in  the  next  place  shows  that  on  May  29  and  May  31,  1902, 
20  bags  of  rice,  10  ])arrels  potatoes,  10  barrels  onions,  16  tins  lard, 
and  2*tons  coal  were  delivered  to  the  Venezuelan  authorities  on  their 
demand  on  behalf  of  the  Government  forces,  and  for  these  provisions, 
as  expropriation  for  public  benefit,  the  Venezuelan  Government  will 
have  to  pay. 

And  whereas  the  prizes  that  are  claimed,  viz,  $6  for  a  bag  of  rice, 
$5  for  a  barrel  potatoes,  $7  for  a  barrel  onions,  $3  for  a  tin  lard,  and 
$10  for  a  ton  coal,  when  compared  with  the  market  prices  at  Caracas, 
do  not  seem  unreasonable,  the  sum  of  $308  will  have  to  be  paid  for 
them. 

As  for  the  further  $106.1)0  claimed  for  provisions  and  ship  stores, 
whereas  there  is  given  no  proof  of  these  provisions  and  stores  being 
taken  l)y  or  delivered  to  the  Government,  they  can  not  be  allowed. 

For  passages  since  April  1,  1902,  claimant  claims  $224.62,  and 
whereas  evidence  shows  that  all  these  passages  were  given  on  request 
of  the  Government,  the  claim  has  to  l)e  admitted,  and  whereas  the 
prices  charged  are  the  same  that  formerly  could  be  charged  by  the 
Orinoco  Shipping  and  Trading  Company,  these  prices  seem  equitable; 
wherefore  the  Venezuelan  Government  will  have  to  pay  on  this  item 
the  sum  of  $224.62. 

As  to  the  expenses  caused  by  stoppage  of  the  steamer  Bolivar  at 
San  Felix  when  Ciudad  Bolivar  fell  in  the  hands  of  the  revolution; 

Whereas  this  stoppage  was  necessitated  in  behalf  of  the  defense  of 
the  Government  against  revolution; 

And  whereas  no  unlawful  act  was  done  nor  any  obligatory  act  was 
neglected  by  the  Government,  this  stoppage  has  to  i)e  regarded—as 
every  stoppage  of  commerce,  industry,  and  communication  during 
war  and  revolution— as  a  common  calamity  that  must  be  commonly 
suffered  and  for  which  Government  can  not  be  proclaimed  liable, 
wherefore  this  item  of  the  claim  has  to  be  disallowed. 

And  now,  as  for  the  claim  of  $61,336.20  for  losses  of  revenue  from 
June  to  Isovember,  1902,  ciiused  by  the  blockade  of  the  Orinoco; 

Whereas  a  blockade  is  the  occupation  of  a  belligerent  party  on  land 
and  on  sea  of  all  the  surroundings  of  a  fortress,  a  port,  a  roadstead, 
and  even  all  the  coasts  of  its  enemy.,  in  order  to  prevent  all  comnmnica- 
tion  with  the  exterior,  with  the  right  of  ''trdmient''''  occupation  \u\t\\ 
it  puts  itself  into  real  possession  of  that  part  of  the  hostile  territory, 
the  act  of  forbidding  and  preventing  the  entrance  of  a  port  or  a  river 
on  oini  territoi'ii  in  order  to  secure  internal  peace  and  to  prevent  com- 
munication with  the  place  occupied  by  rebels  or  a  revolutionary  party 
can  not  properly  ])e  named  a  blockade,  and  would  only  be  a  blockade 
when  the  rebels  and  revolutionists  were  recognized  as  a  belligerent 
party ; 

And  whereas  in  absolute  equity  things  should  be  judged  by  what 
they  are,  and  not  by  what  they  are  called,  such  a  prohibitive  measure 


REPORT  OF  ROBERT  C.  MORRIS.  279 

on  own  territoiT  can  not  be  compared  with  blockade  of  a  hostile  place, 
and  therefor  the  same  rules  can  not  be  adopted; 

And  whereas  the  right  to  open  and  close,  as  a  sovereign  on  its  own 
territory,  certain  harbors,  ports,  and  rivers  in  order  to  prevent  the 
transpassing  of  fiscal  laws  is  not  and  could  not  be  denied  to  the  Vene- 
zuelan Government,  nmch  the  less  this  right  can  be  denied  when  used 
in  defense  not  only  of  some  fiscal  rights,  but  in  defense  of  the  very 
existence  of  the  Government; 

And  whereas  the  temporary  closing  of  the  Orinoco  River  (the 
so-called  "blockade")  in  reality  was  only  a  prohibition  to  navigate 
that  river  in  order  to  prevent  communication  with  the  revolutionists 
in  Ciudad  Bolivar  and  on  the  shores  of  the  river,  this  lawful  act  by 
itself  could  never  give  a  right  to  claims  for  damages  to  the  ships  that 
used  to  navigate  the  river; 

But  whereas  claimant  does  not  found  the  claim  on  the  closure  itself 
of  the  Orinoco  River,  but  on  the  fact,  that  notwithstanding  this  pro- 
hibition, other  ships  were  allowed  to  navigate  its  waters  and  were  dis- 
patched for  their  trips  by  the  Venezuelan  consul,  at  Trinidad,  whilst 
this  was  refused  to  claimant's  ships,  which  fact,  in  the  brief  on  behalf 
of  the  claimant,  is  called  "  unlawful  discrimination  in  the  affairs  of 
neutrals,"  it  must  be  considered  that; 

Whereas  the  revolutionists  were  not  recognized  belligerents  there 
can  not  properly  here  be  spoken  of  " neutrals "  and  "the  rights  of 
neutrals,"  but  that; 

Whereas  it  here  properly  was  a  prohibition  to  navigate; 

And  whereas  where  anything  is  prohibited,  to  him  who  held  and 
used  the  right  to  prohibit  can  not  be  denied  the  right  to  permit  in  cer- 
tain circumstances  what  as  a  rule  is  forbidden,  the  Venezuelan  Govern- 
ment, which  prohibited  the  navigation  of  the  Orinoco,  could  allow  that 
navigation  when  it  thought  proper,  and  only  evidenced  unlawful  dis- 
crimination, resulting  in  damages  to  third  could  make  this  permission 
a  basis  for  a  claim  to  third  parties; 

Now,  whereas  the  aim  of  this  prohibitive  measure  was  to  crush  the 
rebels  and  revolutionists,  or  at  least  to  prevent  their  being  enforced, 
of  course  the  permission  that  exempted  from  the  prohibition  might 
always  be  given,  where  the  use  of  the  permission,  far  from  endanger- 
ing the  aim  of  the  prohibition,  would  tend  to  that  same  aim,  as,  for 
instance,  in  the  case  that  the  permission  were  given  to  strengthen  the 
governmental  forces  or  to  provide  in  the  necessities  of  the  loyal  part 
of  the  population; 

And  whereas  the  inculpation  of  unlawful  discrimination  ought  to  be 
proved; 

And  where  on  one  side  it  not  only  is  not  proved  by  evidence  that 
the  ships  cleared  by  the  VenezuelanVonsul  during  the  period  in  ques- 
tion did  not  receive  the  permission  to  navigate  the  Orinoco  in  view  of 
one  of  the  aforesaid  aims; 

But  Avhereas  on  the  other  side,  evidence,  as  was  said  before,  shows 
that  the  (fovernment  had  suflicicnt  reasons  to  believe  claimant,  if  not 
assisting  the  revolutionists,  at  least  to  be  friendly  and  rather  partial 
to  them,  it  can  not  be  recognized  as  a  pre  )o^"  of  unlawful  discnmmation, 
that  the  Government,  holding  in  view  the  aim  of  the  pr()iiil)ition,  and 
defending  with  all  lawful  measures  its  own  existence,  did  not  give  to 
claimant  the  permission  it  thought  lit  to  give  to  the  above-mentioned 
ships; 


28(1  RKPOKT  OF    KORERT  0.  MORRIS. 

And  whoivas,  thoreforo,  no  uuhavful  actor  culpiiblc  nejjlijjcnce  on 
(ho  part  of  tho  Veno/uolan  Ciovornmcnt  is  ])rov('d,  that  would  make 
the  (JovcriHJKMit  lial)le  for  the  dania.uos  claimant  protends  to  have 
sutlorod  hv  tho  interruplion  of  tho  iiavijiation  of  tho  Oiinoco  River, 
this  item  of  tho  claim  has  to  bo  disallowed. 

The  last  item  of  this  claim  is  for  i^25,000,  for  counsel  fees  and 
(expenses  incurred  in  carrying-  out  the  a])ove-examinod  and  decided 
claim: 

Rut  whereas  the  g-reater  part  of  the  items  of  the  claim  had  to  be 
disallowed; 

And  whereas  in  respect  to  these  that  were  allowed,  it  is  in  no  way 
proved  by  evidence  that  they  were  presented  to  and  refused  by  the 
Government  of  the  Republic  of  the  United  States  of  Venezuela,  and 
whereas,  therefore,  the  necessity  to  incur  those  fees  and  further 
expenses  in  consequence  of  an  unlawful  act  or  culpable  negligence  of 
the  Venezuelan  Government  is  not  proved,  this  item  has,  of  course,  to 
be  disallowed. 

For  all  which  reasons  the  Venezuelan  Government  owes  to  claimant: 

U.  S.  gold. 
For  detention  and  use  of   the  steamers  Masparro  and  Socorro,   36,000 

pesos,  or $27,  692.  31 

For  goods  delivered  for  use  of  the  Government 308.  00 

For  passages 224.  62 

Together,  total 28,224.93 

While  all  the  other  items  have  to  be  disallowed. 

The   United   States   and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America,  on  behalf  of  the 
Orinoco  Steamship  Company,  claimant,  against  the  Republic  of  Ven- 
ezuela, No.  19,  the  sum  of  twenty-eight  thousand  two  hundred  and 
twenty-four  dollars  and  ninety-three  cents  ($28,2^4.93),  United  States 
gold,  is  hereby  awarded  in  favor  of  said  claimant,  wdiich  sum  shall  be 
paid  ])y  the  Government  of  Venezuela  to  the  Government  of  the  United 
States  Of  America  in  accordance  with  the  provisions  of  the  convention 
under  which  this  award  is  made. 

Harry  Barge,  Umpire. 

Attest: 

Eduardo  Calcano  Lanaoria, 

Secretary  on  the  part  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  February  20,  1904. 


EEPORT    Oh'    R015ERT    C.    MORRIS.  281 

Before  the  Mixed  Commission  organized  under  thie  protocol  of  Febru- 
ary 17,  190o,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America   on  behalf 
of  Frances  Irene  Roberts,  administratrix  of 
the  estate  and  sole  heir  at  law  of  William 
Quirk,  deceased,  claimant, 
v.  - 
The  Republic  of  Venezuela. 


No.  20. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 
I. 

STATEMENT   OF   FACT. 

The  United  States  in  this  case  presents  the  claim  of  Frances  Irene 
Roberts,  administratrix  and  sole  heir  at  law  of  William  Quirk,  deceased, 
for  damages  in  the  sum  of  |187,1<j8.o;^. 

The  claim  arose  in  April,  1871,  in  favor  of  William  Quirk,  since 
deceased,  who  was  a  native-born  citizen  of  the  State  of  South  Carolina, 
of  the  United  States  of  America. 

Mr.  William  Quirk,  in  April,  1871,  and  for  a  year  or  two  prior 
thereto,  had  been  operating  under  a  lease  a  plantation  of  about  a 
thousand  acres  in  the  State  of  Aragua,  which  plantation  he  had  cleared, 
drained,  and  otherwise  equipped  with  implements  and  machinery  for 
the  raising  of  cotton  and  ginning  and  preparing  the  same  for  market, 
and  at  the  time  of  the  occurrences  complained  of  he  was  the  ow^-ner  of 
a  lease  of  this  plantation  and  of  all  the  personal  property  and  crop 
thereon  situated. 

On  the  19th  of  April,  1871,  a  body  of  regular  soldiers  of  the  Vene- 
zuelan Government  came  to  the  plantation,  broke  into  the  dwelling 
house  and  stables,  and  drove  off  and  took  away  with  them  all  the 
horses,  saddles,  and  ])ridles,  and  destroyed  other  property.  These 
acts  were  accompanied  by  acts  of  wanton  insult  and  personal  injury, 
both  to  Mr.  Quirk  and  his  wife,  and  threats  were  made  that  Mr.  Quirk 
would  be  killed  if  he  remained  upon  the  plantation. 

Mr.  Quirk  complained  to  and  had  a  personal  interview  with  the 
President  of  the  Venezuelan  Repul)lic,  at  that  time  General  Blanco, 
and  claimed  his  protection  against  (xeneral  Alcantara,  under  whose 
immediate  direction  the  outrages  complained  of  had  been  connnitted. 
President  Blanco  stated  that  he  could  not  interfere  with  or  control 
General  vVlcanfara. 

By  these  acts  of  wanton  outrage  and  their  accompanying  threats, 
and  the  inability  of  the  Venezuelan  (Joverument  to  protect  him,  it 
became  impossible  for  Mr.  Quirk  to  safely  continue  living  on  or  operat- 
ing his  plantation,  and  he  was  therefore  compelled  to  dispose  of  such 
property  as  had  not  been  destroyed,  at  a  sacrilice,  and  al)andon  the 
property,  with  its  gi-owing  crops  and  fixtures,  which  belonged  to  Mr. 
Quirk.  '  Tlu5  damages  claimed  consist  of  tin;  value  of  the  crop  and 
fixed  property,  this  amount  being  based  upon  an  appraisement  taken 
under  authority  of  the  local  judge  of  the  disti-ict;  the  value  of  the 
horses  and  mules  taken;  the  loss  upon  household  and  other  furniture; 
the  profit  that  would  have  been  made  in  the  crop  of  1871,  and  the 
indirect  loss. 


282  REPORT  OB^  ROBERT  0.  MORRIS. 

II. 

The  evidence  amjih/  KU))j)orts  the  claim. 

At'conipanyino-  the  inomorial  tiled  b3^Mr.  Quirk  in  his  lifetime  are  a 
imiulun-  of  exhibits,  which  prove  by  the  testimony  of  several  witnesses, 
iuMohl)ors  of  Quirk's  plantation,  the  exact  truth  of  his  statements  as 
to  The  injuries  comphiincd  of.  These  are  followed  by  proof  of  the 
al)andonment  of  the  estate,  the  loss  and  value  of  the  horses  taken,  and 
a  judicial  appraisement  of  the  cotton  and  other  property  abandoned. 
These  are  followed  by  proper  protest,  tiled  at  Caracas  with  the 
American  legation,  and  by  a  certiticate  from  General  Alcantara  him- 
self, in  which  the  facts  are  not  denied,  but  the  sole  claim  is  made  that 
the  acts  were  done  as  necessary  incidents  of  war. 

That  these  acts  of  wanton  injury  were  committed  for  the  express 
purpose  of  expelling  Mr.  Quirk  from  the  country  or  compelling  him 
to  leave,  and  of  destroying  and  confiscating  his  property,  is  borne  out 
by  the  accompanying  extracts  from  "La  Opinion  National,"  setting 
forth  a  proclamation  or  programme,  issued  on  May  13,  1871,  calling 
for  the  expulsion  of  all  foreigners  and  confiscation  of  their  property. 
Although  this  is  of  subsequent  date,  it  clearly  indicates  the  state  of 
feeling  at  that  time  toward  the  foreigners. 

The  evidence  is  also  clear  that  the  acts  complained  of  were  not  done 
during  nor  as  a  part  of  any  war  or  revolutionary  movement,  but  that 
the  injury  was  inflicted  by  the  regular  troops  of  the  Government 
under  the  express  orders  of  its  chiefs,  and  at  a  time  when  and  place 
where  the  country  was  quiet  and  undisturbed. 

III. 

TJie  facts  of  this  case  established  hy  the  evidence  are  not  substantially 
dispxded  hy  the  Venezuelan  Government. 

From  the  diplomatic  correspondence  which  followed  the  presenta- 
tion of  this  claim  to  the  Venezuelan  authorities  it  appears  that  the 
only  substantial  reason  given  for  not  recognizing  and  adjusting  this 
claim  was  that  Mr.  Quirk  was  simply  the  agent  of  Boulton  &  Co., and 
had  no  right  himself  to  the  claim. 

This  is  not,  however,  in  any  sense  a  denial  of  the  facts  out  of  which 
the  claim  arose,  ])ut  merely  a  dispute  as  to  whether  the  claimant  can 
recover  for  all  the  property  destroyed. 

IV. 

Tlie  claimant  has  a  right  to  recover  for  all  the  damage  sustained. 

The  position  of  the  Government  of  Venezuela  that  Mr.  Quirk  was 
acting  as  the  agent  merely  of  Boulton  &  Co.,  and  had  no  individual 
interest  in  the  enterprise,  is  not  sustained  by  the  facts  as  to  the  rela- 
tion between  Boulton  &  Co.  and  Quirk.  It  is  apparent  that  Boulton  & 
Co.  were  merely  Mr.  Quirk's  factors,  who  advanced  him  money  to 
carry  on  the  business.  The  relation,  therefore,  is  one  of  debtor  and 
creditor,  and  not  principal  and  agent;  and  that  the  creditor  received, 
instead  of  interest,  a  portion  of  the  profits,  makes  no  legal  difference 


REPORT  OF  ROBFRT  C.  MORRlS.  283 

in  the  relation.  Mr.  Quirk  was  the  lessee  of  the  plantation,  and 
operating-  the  same  in  his  own  name,  and  he  is  the  person  who  was 
injured,  both  personally  and  in  his  property  rights,  bj'  the  injuries 
complained  of.  Whether  his  creditors  might  not  have  a  lien  upon  anj' 
amount  of  his  recovery  is  a  question  that  is  not  before  this  Commis- 
sion. The  presumption  arising  from  their  not  having  made  any  claim 
is  that  they  have  no  such  lien. 

V. 

The  Venezuelan  Go vernmetit  is respo7isible  for  the  injuries  complained 
of^  and  for  the  resultant  damage. 

In  this  case  the  injuries  complained  of  were  committed  by  regular 
troops  of  the  then  established  Government,  under  the  conduct  of  their 
chiefs.  The  matter  having  been  called  to  the  attention  of  the  President 
of  the  Venezuelan  Republic,  he  took  no  action,  and  expressed  himself 
as  unable  to  take  any  action,  to  prevent  the  outrage  or  remedy  it. 
The  liability  of  the  Government  in  such  a  case  is  very  clearly  estab- 
lished. See  the  opinion  of  the  Chilean  Claims  Commission  in  Shrig- 
ley's  case,  and  the  authorities  there  cited,  (-ith  Moore's  International 
Arbitration,  pp.  3711-3712.)  The  fundamental  principle  there  cor- 
rectly laid  down  is: 

Neutral  property  destroyed  or  taken  by  soldiers  of  a  belligerent,  with  authoriza- 
tion or  in  the  presence  of  their  officers  or  commanders,  gives  right  to  coiupensation 
whenever  the  fact  can  be  proved  that  said  officers  or  commanders  had  the  means  of 
preventing  the  outrage  and  did  not  make  the  necessary  efforts  to  prevent  it. 

This  would  have  been  the  ride,  and  it  would  clearl}'  establish  the 
liabilit}"  of  Venezuela  if  the  acts  complained  of  had  been  done  during 
a  state  of  war  or  revolution.  Much  the  more  does  the  same  liabilitj' 
accrue  from  the  doing*  of  these  acts  when  there  was  no  state  of  war  or 
revolution  to  necessitate  them.  See  also  pages  2952-29.53  of  the  third 
volume  of  Moore's  International  Arbitration  and  the  authorities  there 
cited,  which  clearly  sustain  the  liability  of  the  Government  for  such 
wanton  acts  and  outrages  when  the  matter  is  called  to  the  attention  of 
the  Government,  and  it  either  can  not  or  will  not  redress  or  prevent 
the  matter. 

The  right  of  the  claimant  to  relief  can  be  further  founded  upon  the 
well  known  doctrine  that  where  a  foreigner  is  expelled  and  forced  to 
leave  the  countiy,  abandoning  his  property  and  investments,  h(^  is 
entitled  to  an  award  against  the  expelling  Government  for  the  value 
of  the  property  lost.  See  the  cases  collated  in  the  fourth  ^ ohune  of 
Moore's  International  Arbitration,  page  3339,  et  se(|.  There* can  be 
no  pretense  in  this  case  of  anything  in  the  conduct  of  Mr.  Quirk  fur- 
nishing an  excuse  for  such  procedure. 

VI. 

An  amard  xhould  he  made  for  the  amount  claimed. 

It  l)eing  clear  that  the  acts  complained  of  wei-e  acts  of  wanton  and 
uncalled  for  injury  to  aii  American  citizen,  committed  by  ojlicers  of 
the  Venezuelan  Government,  or  under  their  orders,  not  n^pressed  oi- 
even  disowned  by  the  chief  authorities  of  that  Government,  it  follows 


284  rt:pokt  ok  kohkkt  c.  morris. 

lUH'ossuiilv  llnil  the  clainuinl  is  entitlod  to  an  award.      In  this  case  llu" 
cvidoiice  as  to  the  value  of  tho  property  destroyed  and  the  consequent 
loss  is  clear,  and  an  award  should  l)e  made  for  the  full  amount  claimed. 
Respectfully  submitted 

Robert  C.  Morris, 
Agent  of  the  United  States. 

Fkances  Irenk  Roberts,  ADMiNiSTRArRix  and 
sole  iieir  of  the  estate  of  William  Quirk, 
claimant,  HJlaim,  No.  20. 

/'. 
The  Republic  of  Venezuela. 

ANSWER. 

IFonorahle  memhers  of  tJie  JSLlxtd  Venezuelan- American  Commission: 
The  undersigned,  agent  of  the  United  States  of  Venezuela,  has 
studied  the  claim  presented  hy  Frances  Irene  Roberts,  in  her  character 
of  administratrix  and  sole  heir  of  the  estate  of  William  Quirk,  and 
respectfully  shows  to  the  tribunal: 

The  claim  arises  from  damages  caused  to  Mr.  William  Quirk  l)y 
Venezuelan  soldiers  during  the  year  1871.  The  undersigned  considers 
the  facts  wdiich  give  rise  to  the  claim  suiBciently  proved  to  be  pre- 
judicial and  he  does  not  therefore  attempt  to  contradict  them;  but  he 
has  to  present  for  the  consideration  of  the  honorable  arbitrators  the 
following  points  of  law: 

(1)  It  does  not  appear  by  the  proof  adduced  that  the  Venezuelan 
soldiers  who  caused  the  injury  to  the  interests  of  the  original  claimant 
ol)eyed  orders  of  their  superior  officers,  nor  that  the  latter  could  have 
prevented  the  injury.  The  n^sponsibility  of  the  authors  of  the  deed 
ought  therefore  to  have  lirst  been  followed  up.  Such  is  the  accepted 
doctrine  of  international  law. 

To  pretend  that  a  government  charged  with  the  fulfillment  of  duties  so  nunaerous 
and  complicated  at  every  moment  and  with  such  mechanical  precision  could,  in  the 
cascH  in  which  there  does  not  exist  any  judicial  recourse,  be  constrained  by  diplo- 
matic intervention  to  repair  the  injury  caused  by  its  functionaries,  would  be  to  sus- 
tain an  excessive  and  unreasonable  contention.  (SeeFiore,  Droit  Int.  P.,  \"ol.  I,  p. 
576.) 

See  also  note  No.  1,  which  speaks  of  the  case  of  one  Delbrouck  de 
Limbourg,  who,  under  the  pretext  that,  on  the  8th  of  August,  1845, 
soldiers  belonging  to  ditferent  corps  of  the  array  of  Moza  had  caused 
injuries  to  his  property,  demanded  from  the  State  the  payment  of 
(j,00<)  francs  a,<  inclemnity.  "The  action  for  reparation  on  account 
of  an  injury  caused  by  a  wrongful  act"'  said  the  tribiuial  of  Brussels, 
"ought  to  i)e  prosecuted  against  the  authoi*  of  the  injury  and  against 
those  who  are  civill}^  responsibh;  for  the  acts  which  were  committed 
l)V  soldiers  in  their  service."  (Trib.  Civ.  de  Brussels,  24  Die,  1842; 
Court  of  Brussels,  23  Nov.,  184:1) 

(2)  As  appears  from  the  contention  itself  of  the  claimant,  he  was 
nothing  but  a  simple  manager  of  the  hacienda  "Tocoron,"  which  w^as 
the  property  of  Messrs.  Boulton.  He  ought,  therefore,  in  order  to 
tix  (Hjuitably  the  amount  of  the  claim,  to  have  produced  the  contract 
which  he  had  made  and  entered  into  with  Messrs.  Boulton  &  Co., 
above  cited. 


REPORT  OF  ROBERT  C.  MORRIS.  285 

(3)  The  right  to  claim  in  the  case  which  might  have  existed  can  be 
considered  as  barred.  In  fact,  since  the  last  note  sent  b}^  His  Excel- 
lency William  A.  Pyle,  minister  of  the  United  States  at  Caracas,  to  the 
minister  of  foreign  relations,  under  date  of  the  3d  of  July,  1872,  this 
matter  has  not  been  presented  to  Venezuela  and  would  probably  never 
have  been  except  for  the  abnormal  circumstances  which  caused  the 
celebration  of  the  protocol  signed  in  Washington.  International  law 
requires  three  prerequisites  in  order  that  prescription  may  l)e  invoked 
as  a  means  to  extinguish  a  right  of  action: 

First,  that  there  should  not  have  been  insurmountable  ignorance  on 
the  part  of  the  one  who  had  the  right  to  institute  the  action;  second, 
that  he  has  been  silent;  and,  third,  that  this  silence  can  not  be  justified 
by  plausible  reasons,  such  as  oppression  or  a  justifiable  fear  of  a  grave 
wrong. 

The  present  claim  falls  in  none  of  the  cases  of  exception,  therefore 
it  has  been  barred  according  to  law. 

Caracas,  eluly  13,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  Frances  Irene  Roberts,  administratrix  of 
the  estate  and   sole   heir  at  law  of  William    ^^   ^q 
Quirk,  deceased,  claimant, 

V. 

The  Republic  of  Venezuela. 

replication  on  behalf  of  the  tjnited  states. 

I. 

With  reference  to  the  discussion  of  the  law  by  tne  honorable  agent 
of  Venezuela  in  point  1  of  his  answer,  the  United  States  stands  upon 
its  position  taken  in  Point  V  of  its  brief  in  support  of  the  above  claim. 

11. 

Regarding  the  contention  of  Venezuela,  set  forth  in  point  2  in  its 
answer  to  the  claim,  to  tiie  effect  that  Quirk  was  simply  (he  inanager 
of  the  hacienda  Tocoron,  and  that  this  was  th(;  property  of  Messrs. 
l^ouiton  «fe  Co.,  we  herewith  submit  a  hotter  of  Messrs.  Houlton  c^ 
Co.  to  Hon.  William  A.  Pile,  Tnited  States  minister  resi(h"nt  in 
Caracas,  dated  Jamiarv  9,  ls72,  in  which  it  is  clearly  set  I'oi'th  that 
Ik)ulton  &  Co.  were  inerely  Mv.  (park's  factors  \yho  advanced  hnn 
the  necessary  money  to  carry  on  his  business.  This  is  cvidcMit  front 
thao  paragraph  of  the  letter  which  states: 

Our  atrrcoment  witli  Mr.  Quirk  was  to  providi"  liiin  with  siiHiciciil  .iiiiihil  wliicli, 
added  to  hiHown,8honld  he  Rnfficient  to  raiHc^  tho  cmi.  mid  i^\\\\>  W  t<>  Lumtmh.,!,  the 
net  i-rocci'ds  to  )>e  dividc<l  {-(lually  l>ct\vec-ii  us. 

The  rcdation,  therefore,  of  Mr.  C^uirk  (o  P.oiilton  &  Co.  was  merely 
one  of  debtor  and  creditor  and  not  principal  and  agent,  and  because 
the  creditor  received   instead  of   interest  a   })ortion   of   the   i)i()fitM 


2S()  REPORT    OF    ROBERT    C.    MORRIS. 

iimkos  no  leoal  diti'orence  in  tho  relation.  Mr.  Quirk  had  invested 
some  of  his  own  money  in  addition  to  that  advanced  liiin  by  Boultoii 
c^  Co.,  and  he  is  tiie  person  who  was  daniag-ed,  l)oth  personally  and  in 
his  property  riohts  by  the  injuries  complained  of.  Whether  his  cred- 
itors niiohl  not  have  a  lien  u])on  any  amount  of  his  recovery  is  a  ques- 
tion that  is  not  before  this  C'onunission.  In  this  respect  we  refer  to 
thiit  paraui-aph  of  the  ])rief  of  Messrs.  Mordecai  &  Gadsden,  the 
attorneys'l'or  the  claimant,  on  page  50,  in  which  they  say: 

Second.  That  the  property  so  taken  and  destroyed  was  the  property  of  William 
(^nirlv  and  belonired  to  no  one  else.  Tlis  indebtedness  to  Bonlton  &  Co.  or  any  other 
person  lii'in^  a  liiatter  which  will  be  settled  by  his  administratrix  in  due  course  of 
adniinistratC)n.  Any  amount  paid  by  the  finding  of  this  tribunal  will  pass  to  the 
administratrix  as  a  bonded  officer,  aiid  will  be  distributed  bv  her  as  the  law  of  the 
State  of  South  Carolina  directs. 

III. 

As  to  the  third  point  in  the  answer  of  Venezuela,  that  the  claim  in 
this  case  must  be  considered  as  barred,  since  this  matter  has  not  been 
urtred  ])y  the  claimant  for  many  years,  we  respectfully  call  the  atten- 
tion of  the  Commission  to  the  tact  that  there  has  been  no  commission 
which  had  jurisdiction  over  this  claim  since  it  arose  until  the  present 
time,  and  therefore  it  can  not  be  barred.  The  claim  is  now  presented 
to  this  high  Commission,  which  has  full  jurisdiction  over  it,  and  an 
award  should  ))e  made  for  the  full  amount  claimed. 

Respectfullv  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The   United  States   and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 


No.  20. 


The  United  States  of  America  on  behalf  of 
Frances  Irene  Roberts,  administratrix  of  the 
estate  and  solo  heir  at  law  of  William  Quirk, 
deceased,  claimant, 

'V. 

The  Republic  of  Venezuela. 

decision  and  award. 

Opinion  by  Bainbridge,  Commissioner. 

The   Commission    awards   in    favor   of    the   claimant   the    sum   of 
$18,154.61  in  United  States  gold. 

The   United   States   and   Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  of 
Frances  Irene  Roberts,  administratrix  of  the 
estate  and  sole  heir  at  law  of  ^V^illiam  Quirk, 
deceased,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  20. 


Bainbridge,  Com  m  msloner : 

William  Quirk,  a  native  citizen  of  the  United  States,  came  to  Ven- 
ezuela in  1867  to  engage  in  the  business  of  raising  sea-island  cotton. 


REPORT  OF  ROBERT  C.  MORRIS.  287 

He  first  rented  a  small  plantation  known  as  "Guayabita,"  which  he 
worked  successfully  for  about  eighteen  months.  Satisfied  that  the 
soil  and  climate  of  Venezuela  were  adapted  to  the  culture  of  a  fine 
qualit}'  of  cotton,  he  succeeded  in  April,  1869,  in  interesting-  several 
merchants  in  Caracas,  who  advanced  him  money  with  the  aid  of  which 
in  that  year  he  raised  a  profitable  crop,  and  returned  the  borrowed 
capital  with  interest  at  12  per  cent. 

In  the  latter  part  of  18(39  the  firm  of  H.  L.  Boulton  &  Co.,  of  Car- 
acas, contracted  with  Mr..Quirk  to  raise  sea-island  cotton  on  a  larger 
scale.  The  agreement  was  that  Boulton  &  Co.  were  to  provide  Quirk 
with  sufficient  capital  which,  added  to  his  own,  would  enable  them  to 
raise  the  crop  and  ship  it  to  Liverpool,  the  net  proceeds  to  be  divided 
equally  between  them.  Pursuant  to  this  agreement  a  part .  of  the 
estate  known  as  "Tocoron"  in  the  State  of  Aragua  was  rented.  Boul- 
ton &  Co.  state: 

Upon  this  property  we  found  nothing  hut  a  house  in  a  very  dihTpidated  condition 
and  the  lands  most  suited  to  us  in  a  state  of  forest  for  the  most  part  and  the  rest  cov- 
ered with  tall  grass  called  gamblot.  The  first  thing  we  had  to  do  was  to  make  the 
house  habitable  for  Quirk  and  his  family,  then  fence  in  our  property,  cut  down  the 
forest,  pluck  up  the  gand)lot  by  the  roots,  so  that  it  should  not  destroy  the  ctitton, 
and  repair,  to  a  certain  extent  sufficiently  to  preserve  our  crop,  the  water  courses. 

The}^  brought  from  the  United  States  all  the  necessar}^  implements 
and  machiner}"  and  H-i  laborers  familiar  with  the  methods  of  cotton 
raising.  The  prospects  were  so  favorable  that  Boulton  &  C'o.  finally 
agreed  with  Quirk  to  continue  the  planting  of  cotton  for  three  years, 
two  of  which  they  were  to  participate  in  and  the  third  to  be  for 
Quirk's  sole  account.  On  April  19,  1871,  they  had  alread}^  taken  off 
the  principal  part  of  the  crop  and  were  preparing  to  take  in  a  second, 
and  arrangements  were  entered  into  to  plant  the  crop  of  1872. 

This  was  the  situation  when,  on  April  19,  1871,  about  300  regular 
soldiers  under  the  command  of  General  Rodrigues  and  constituting 
part  of  the  arm}'  of  General  Alcantara,  the  civil  and  military  gov- 
ernor of  the  State  of  Aragua,  came  to  "Tocoron,"  took  prisoner  and 
tied  with  a  rope  Quirk's  bookkeeper;  took  from  the  stables  (5  horses 
and  a  mule  belonging  to  Quirk;  entered  the  dwelling  house  which  they 
searched;  used  threatening  and  abusive  language  toward  Quirk  and 
his  family;  compelled  his  wife  to  deliver  up  claimant's  re\'ol\er,  and 
then  left  the  premises,  threatening  to  return  and  kill  the  claimant 
and  destroy  the  place.  Mr.  Quirk  claimed  the  protection  of  his  tlag 
and  besought  the  officer  in  connnand  to  desist,  but  was  told  l)y  the 
latter  that  he  was  "carrying  out  strictly  the  oi'diMS  of  General  Alcan- 
tara." After  this  outrage  Quirk  considered  it  unsafe  for  himself  or 
his  family  to  remain  at  Tocoron  and  he  left  the  next  day  for  Caracas. 
There  he  claimed  th(q)rotection  of  the  President,  (Jen.  (uizman  Blanco, 
who  told  him  that  he  could  not  interfere  with  or  control  (leneral 
Alcantara.  Quirk  then  returned  to  Tocoron,  disposed  of  his  house- 
hold furniture  at  a  sacrifice,  and  brought  to  (Caracas  his  machineiT, 
farming  utensils,  and  his  American  emi)loyees.  An  inventory  and 
appraisement  of  the  immovable  propei'ty  on  the  plantation  was  made 
on  May  5,  1871,  ])y  order  of  the  local  court  and  a  valuation  ])laced 
thereon  of  21,2,55  pesos.  The  proi)erty  taken  by  the  troops  on  Ai)ril 
19  was  valued  at  1,725  pesos.  In  June,  1871, 'Mr.  Quirk  returned 
with  his  familv  (o  the  United  Stat(^s,  where  he  died  on  May  25,  18!>5. 

Or  November!:,  1871,  the  Government  of  the  United  States,  through 


'J  8 8  REPORT  OF  ROBERT  C.  MORRIS. 

its  location  :it  C'avacus.  in-esentcd  to  the  Venezuelan  Government  a 
rlaini"oM  behalf  of  William  Quirk  for  the  looses  and  injuries  su.stained 
by  him  as  a  result  of  the  events  above  narrated.  Tlie  (  hum  was  the 
subjeet  of  an  extended  diplomatic  correspondence  between  the  two 
(xovernments,  but  no  .settlenunit  thereof  was  ever  reached. 

Tiie  United  States  now  presents  to  this  Connuission,  on  behalf  of 
Fi-anc(^s  Irene  Koberts,  administratrix  of  the  estate  and  solo  heir  at  law 
of  William  Quirk,  deceased,  a  claim  for  the  crop  and  immovable 
propertv  at  Tocoron,  based  upon  the  appraisement  made  in  May,  1871; 
for  the  \alue  of  the  property  taken  away  by  the  troojjs  on  April  19, 
1871;  for  the  loss  upon  liousehold  and  other  furniture;  for  the  profit 
that  would  have  been  made  on  the  crop  of  1871,  and  for  imlirect  losses, 
said  claim  amountino-  in  the  aogreoate  to  the  sum  of  $187,108.03. 

The  learned  counsel  for  Venezuela  in  his  answer  does  not  controvert 
the  main  facts  upon  which  this  claim  rests;  but  he  raises  the  following 
ol)jections: 

i.  That  it  does  not  appear  from  the  proof  adduced  that  the  Vene- 
zuelan soldiers  who  caused  the  injury  obeyed  orders  of  their  superior 
officers  or  that  the  latter  could  have  prevented  the  injury;  and  that 
therefore  the  responsibility  of  the  authors  of  the  deed  ought  to  have 
been  first  followed  up. 

2.  That  JNIr.  Quirk  was  only  the  manager  of  the  estate  for  Boulton 
&  Co.,  and  that  he  ought,  therefore,  in  order  to  fix  equitably  the 
amount  of  the  claim,  to  have  produced  the  contract  which  he  had 
entered  into  with  said  firm. 

3.  That  the  claim  is  barred  by  the  lapse  of  time. 

It  is  prol)ably  true  that  acts  of  pillage  conmiitted  by  soldiers  absent 
from,  their  regiments,  and  not  under  the  direct  command  of  their  ofli- 
cers,*do  not  affect  the  responsibility  of  their  government,  and  that 
such  acts  are  considered  as  common  crimes.  But  this  was  not  the  fact 
here.  Quirk  complained,  on  the  day  following  the  outrage,  directly 
to  General  Alcantara,  and  stated  to  him  that  the  officer  commanding 
the  soldiers  had  replied  to  his  appeal  that  his  property  and  himself  be 
respected  that  he  (the  officer)  w"s  '"carrying  out  strictly  the  orders  of 
General  Alcantara."  It  is  clea:  from  all  the  evidence  that  the  troops 
were  acting  directly  under  the  ccmmand  of  General  Rodriguez,  who, 
in  turn,  was  acting^  directly  under  the  orders  of  the  civil  and  military 
governor  of  the  State. 

The  second  objection  was  also  raised  by  the  Venezuelan  Govern- 
ment in  the  course  of  the  diplomatic  correspondence  regarding  this 
claim.  The  United  States  minister,  in  a  note  dated  April  30,  1872, 
addressed  to  the  minister  of  foreign  relations,  transmitted  a  letter  to 
him  from  Messrs.  Boulton  &  Co.  setting  forth  that  no  written  con- 
tract existed  l)etween  them  and  Mr.  Quirk.  The  learned  counsel 
for  the  United  States  attaches  to  his  replication  in  this  case  a 
letter  of  Boulton  &  Co.,  dated  ,Tanuary  9,  1872,  addressed  to  the 
United  States  minister  at  Caracas,  Mr.  Pile,  showing  the  arrangeipaent 
with  Quirk  to  be  that  already  herein  set  forth.  It  provides  for  a  joint 
enterprise  in  the  raising  of  sea-island  cotton  in  Venezuela  on  a  sonie- 
what  extended  scale.  Boulton  &  Co.  were  to  put  into  the  enterprise 
the  principal  part  of  the  capital  and  were  to  receive  in  return  not 
interest  on  money  loaned.  ))ut  profits  produced  1)V  capital  invested. 
Quirk  wa<  to  add  thereto  his  more  limited  capital,  as  well  as  his  wnder 
knowledge  and  experience  of  the  business  in  a  general  supervision  of 


REPORT  OF  ROBERT  C.  MORRIS.  *   289 

the  enterprise,  and  to  receive  in  return  not  wages  or  salary  for  services 
rendered,  but  a  moiet}'  of  the  net  proceeds  of  the  crop  produced. 

The  Commission  has  jurisdiction  over  all  claims  owned  by  citizens 
of  the  United  States  of  America  against  the  Republic  of  Venezuela 
which  have  not  been  settled  by  diplomatic  agreement  or  by  arbitration 
between  the  two  Governments.  This  claim  has  remained  unsettled  for 
over  thirtj^  j^ears.  It  was  diligenth'  prosecuted  by  the  Government 
of  the  United  States  in  a  diplomatic  correspondence  extending  from 
November  4,  1871,  to  April  22,  1S76,  but  no  final  agreement  upon  the 
subject  was  ever  reached.  The  claim  arose  subsequent  to  the  Com- 
mission of  1S66,  and  it  did  not  fall  within  the  jurisdiction  of  the  Com- 
mission of  1889.  There  has  been  no  opportunity  for  its  adjudication  by 
arbitration  prior  to  its  submission  here.  It  was  bi ought  to  the  atten- 
tion of  the  Venezuelan  Government  within  a  few  days  after  its  incep- 
tion. The  essential  facts  which  fix  the  liability  of  Venezuela  were  not 
then  and  are  not  now  denied.  The  contention  that  this  claim  is  barred 
b}'  the  lapse  of  time  would,  if  admitted,  allow  the  Venezuelan  Govern- 
ment to  reap  advantage  from  its  own  wrong  in  failing  to  make  just 
reparation  to  Mr.  Quirk  at  the  time  the  claim  arose. 

The  questions  for  determination  here  are  the  fact  of  Mr.  Quirk's 
individual  loss  or  injury,  the  liabilit}'  of  the  Venezuelan  Government 
therefor,  and  the  amount,  if  any,  of  compensation  due. 

It  is  urged  that  the  relation  existing  between  Quirk  and  Boulton  & 
Co.  was  that  of  debtor  and  creditor.  But  the  tenor  of  Boulton  &  Co.'s 
letter  introduced  in  evidence  hardly  sustains  this  contention.  The 
interests  of  each  in  the  joint  enterprise  appear  to  have  been  distinct 
and  are  so  regarded  in  this  decision.  Boulton  &  Co.  state  that  they 
make  "no  mention  of  their  own  losses,"  as  they  prefer  to  put  forth 
"no  claim  in  their  own  name  against  the  Government  of  Venezuela." 
The  citizenship  of  Boulton  &  Co.  is  not  shown  in  evidence,  and  this 
Commission  can  not  assume  jurisdiction  of  any  claim  for  their  losses 
put  forth  in  the  name  of  a  citizen  of  the  United  States. 

On  the  other  hand,  Mr.  Quirk  was  not  merely  the  manager  of  Boulton 
&  Co.  He  invested  his  own  capital  in  the  enterprise  and  was  entitled 
to  one-half  the  profits.  The  specific  amount  of  his  investment  is  not 
stated,  but  from  all  the  evidence,  it  is  believed  that  a  reasonably  accu- 
rate estimate  of  his  pecuniary  losses  can  be  made.  The  property 
taken  by  the  troops  on  April  19,  1871,  is  claimed  as  his  own,  and  its 
value  is  proved  to  have  been  1,725  pesos.  For  loss  on  his  furniture 
and  his  personal  expenses  he  claims  the  sum  of  5,000  pesos.  It 
appears  from  Boulton  &  Co.'s  letter  that  on  the  date  of  the  injury, 
the  principal  part  of  the  crop  of  1871  had  been  taken  off  and  prepara- 
tions were  then  making  for  the  second  crop.  An  allowance  of  2,000 
pesos  is  believed  to  be  a  reasonable  valuation  of  ]\lr.  Quirk's  share  in 
the  profits  of  this  crop.  Upon  the  total  sum  of  8,725  pesos  interest 
is  allowed  at  the  rate  of  3  per  cent  per  annum  from  January  1,  1872, 
to  December  31,  1903,  making  the  sum  of  17,100  pesos,  equivalent  to 
the  sum  of  $13,154.61  United  States  gold. 

But  the  responsibility  of  Venezuela  does  not  end  here.  The  testi- 
mony is  uniformly  to  the  effect  that  Mr.  Quirk  was  a  peaceable  and 
law-abiding  man,  engaged  in  an  enterprise  of  practical  benefit  to  the 
State  as  well  as  to  himself.  P:ven  (Jeneral  Alcantara  on  April  ^^^  1^*  ^,; 
certifies  to  Quirk's  "perfect,  impartial,  and  circumspect  conduct, 

S.  Doc.  317,  58-2 19 


200   •  REPORT  OF  ROBERT  C.  MORRIS. 

as  pertaming  to  his  condition  as  a  foreigner.  The  evidence  is  equally 
dear  and  iincontrovertod  that  the  attack  upon  liini  and  his  family  was 
wholly  without  justitioation  or  excuse.  The  act  was  committed  by 
duly  'constituted  military  authorities  of  the  Government.  It  was 
never,  so  far  as  the  evidence  shows,  disavowed,  or  the  guilty  parties 
punished.  Under  these  circumstances,  w^ell-established  rules  of  inter- 
national law  iix  a  lialnlity  beyond  that  of  compensation  for  the  direct 
losses  sustained.  Other' consequences  are  presumed  to  have  been  in 
the  contemplation  of  the  parties  committing  the  wrongful  acts,  and  in 
that  of  the  Government  whose  agents  they  were.  The  derangement 
of  ]\Ir.  Quirk's  plans,  the  interference  with  his  favorable  prospects, 
his  loss  of  credit  and  business  are  all  proper  elements  to  be  considered 
in  the  compensation  to  be  allowed  for  the  injury  he  sustained. 

To  the  amount  hereinbefore  designated  is  added,  in  view  of  the 
considerations  above  mentioned,  the  sum  of  $5,000.  An  award  will 
therefore  be  made  in  this  claim  for  the  sum  of  $18,154.61  in  gold  coin 
of  the  United  States. 

The  United   States  and  Venezuelan   Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Frances 
Irene  Roberts,  administratrix  of  the  estate  and  sole  heir  at  law  of 
William  Quirk,  deceased,  claimant,  against  the  Republic  of  Venezuela, 
No.  20,  the  sum  of  eighteen  thousand  one  hundred  fifty-four  and  iVfj 
dollars  ($18, 154:. 61)  in  United  States  gold  coin  is  hereby  awarded  in 
favor  of  said  claimant,  which  sum  shall  be  paid  by  the  Government  of 
Venezuela  to  the  Government  of  the  United  States  of  America  in 
accordance  with  the  provisions  of  the  convention  under  which  this 
award  is  made, 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Yenezuela. 
William  E.  Bainbridge, 
Conimissio7ie7'  on  the  jpart  of  the  United  States  of  America. 

Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 
Secretary  on  the  jxirt  of  the  United  States  of  America. 

Delivered  August  25,  1903. 


REPORT  OF  ROBERT  C.  MORRIS.  291 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}"  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 

of  Susanna  Maud  Jarvis  and  Kebecca  Joseph-  I 

ine  Jarvis,  claimants,  [  No.  21. 

V.  I 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

STATEMENT   OF   FACT. 

The  United  States  presents  in  this  case  the  claim  of  Susanna  Maud 
Jarvis  and  Rebecca  Josephine  Jarvis  for  bonds  issued  b}"  the  Republic 
of  Venezuela  in  the  total  amount  of  $81,000  with  interest  at  7  per 
cent  from  April  11,  1863.  These  bonds  were  issued  to  one  Nathaniel 
Jarvis,  a  native  citizen  of  the  United  States,  on  April  11,  1863,  and 
were  by  him  duly  assigned  and  transferred  to  his  nephew,  Nathaniel 
Jarvis,  jr.  The  latter  died  on  the  10th  day  of  January,  1901,  leaving 
a  last  will  and  testament  whereb}'  all  his  property'  was  bequeathed  to 
the  claimants,  his  daughters. 

The  bonds  have  been  duly  presented  to  the  Republic  of  Venezuela 
for  payment.  Neither  the  principal  nor  any  part  of  the  interest  has 
been  paid.  Fifty-five  of  the  original  bonds  have  been  deposited  at 
the  Department  of  State  of  Washington;  twenty-six  seem  to  have 
been  lost  and  are  alleged  to  be  the  property  of  the  claimants. 

This  claim  was  presented  to  the  former  commission  appointed 
under  the  act  of  1885  and  was  dismissed  by  that  commission  for  want 
of  jurisdiction,  since  which  time  the  authorities  of  Venezuela  have 
refused  to  recognize  the  claim  solely  upon  the  ground  that  the  deci- 
sion of  the  former  commission  was  a  final  determination  adverse  to 
the  claimants.  From  the  proceedings  before  the  former  commission 
it  appears  that  the  Government  of  Venezuela  raised  also  the  objection 
that  the  bonds  were  not  valid  and  binding  obligations  of  the  Republic 
of  Venezuela. 

We  have  therefore  to  consider,  first,  the  jurisdiction  of  the  present 
Commission,  and,  second,  the  validity  of  the  bonds. 

II. 

This  claim  is  pro pe)'ly  within  the  jurisdiction  of  this  2yvesent  Com- 
mission. 

This  subject,  which  may  be  considered  generally  as  a  question  of 
jurisdiction,  really  involves  several  different  elements,  each  of  which 
we  will  consider  in  order. 

(A)  I  ■ 

There  can  he  no  objection  to  the  jurisdiction  of  this  Commission 
because  the  claim  is  hosed  %ivon  the  bonds  issued  by  the  Republic  of 
Venezuela. 

It  was  at  one  time  contended  before  some  of  the  early  ar})itration 
commissions    that   bonds  or    other    similar   obligations  issued  by  a 


292  REPORT  OF  ROBERT  0.  MORRIS. 

u-ovornniont  wore  not  proper  matters  of  international  intervention  nor 
ehiinis  pit^per  to  be  considered  h}^  such  an  arbitration  commission,  but 
the  rule  of  all  such  questions  has  been  since  clearly  settled  to  the  con- 
trary, especially  since  the  celebrated  circular  issued  by  Lord  Falmcr- 
stonin  184S  to  "the  British  representatives  at  foreign  courts  defining 
the  limits  of  intervention  to  include  all  claims  for  moneys  due  English 
subjects. 

Any  doul)t  upon  this  subject,  so  far  as  concerns  the  claim  m  this 
case  and  the  powers  of  the  present  Commission,  is,  moreover,  removed 
bv  the  express  language  of  the  protocol  in  which  the  Commission  is 
empowered  and  directed  to  take  up  and  adjudicate  all  claims  owned  by 
citizens  of  the  United  States. 

(B) 

The  claim  liet^e  made  is  not  barred  hy  any  rule  of  li/mitation  or  laches 
hecause  of  its  not  having  leen  x^resented  to  the  comitiissio7i  of  1867. 

In  the  first  place,  the  commission  of  1867  was  one  of  a  limited  juris- 
diction, and  the  claims  of  the  claimants  in  this  case  could  not  have 
])een  presented  to  nor  determined  by  that  commission.  By  Article  I 
of  the  convention  under  which  the  commission  of  1867  was  appointed 
its  jurisdiction  was  limited  to  claims  which  may  have  been  presented 
to  the  Government  of  the  United  States  and  its  legation  in  Caracas. 
That  commission  therefore  had  no  power  to  consider  the  claim  in 
this  case  for  bonds  which  were  not  then  due.  The  claim  was,  in  fact, 
not  presented  to  the  commission  of  1867,  and  was  not  in  any  way 
passed  upon  by  that  commission.  Whether  a  claim  might  or  might 
not  have  been"^there  presented  for  the  interest  then  in  default,  if  a 
claim  for  that  interest  had  theretofore  been  presented  to  the  Government 
of  the  United  States  or  its  legation  in  Caracas,  it  is  needless  to  consider. 
There  was,  of  course,  at  that  time  some  interest  in  default,  but  the 
claimants  can  not  be  held  responsible  for  laches  or  barred  in  any  way 
because  they  had  not,  prior  to  1867,  applied  for  the  intervention  of 
the  United  States  in  favor  of  the  claim  merely  for  unpaid  interest  for 
so  short  a  period  upon  bonds  which  were  issued  in  1863  only  and  were 
not  as  vet  due. 

There  was  therefore  no  right  on  the  part  of  the  claimants  to  have 
presented  their  present  claim  for  the  principal  of  the  bonds  to  the 
commission  of  1867,  and  there  having  been,  as  you  will  presently  see, 
no  commission  since  that  time  until  the  present  one  with  power  to 
adjudicate  their  claims,  they  can  not  be  held  barred  by  any  doctrine 
of  limitations  or  laches. 

It  is,  moreover,  a  settled  principle  of  international  law,  which  has 
no  fixed  statute  of  limitations,  that  the  doctrine  of  prescription  or 
laches  is  applicable  only  to  a  case  where  a  claimant  fails  to  promptly 
bring  the  matter  to  the  attention  of  his  government,  but  neglects  so 
to  do  for  an  unreasonable  length  of  time.  Such  principle  of  prescrip- 
tion can  necessarily  have  no  application  to  the  facts  in  this  case,  where 
the  claim  was  promptly  brought  to  the  attention  of  the  United  States 
Government  at  the  time  the  bonds  became  due,  and  the  matter  has 
been  the  subject  of  constant  diplomatic  correspondence  between  the 
two  Governments,  and  the  sole  reason  for  its  nonad judication  has  been 
that  there  has  in  the  meantime  been  no  arbitration  commission  with 
power  to  hear  and  determine  the  case. 


REPOKT  OF  ROBERT  C.  MORRIS.  293 

(C.) 

The  commission  appointed  under  the  act  of  1885^  which  met  in  1890^ 
did  not  have  jurisdiction  or  power  to  hear  and  determine  this  case. 

The  powers  of  that  lattei*  commission  were  expressly  limited  to  a 
review  and  redecision  of  the  cases  which  had  been  tried  in  the  com- 
mission of  1867.  It  is  only  necessary  in  support  of  this  proposition 
to  refer  to  the  repeated  findings  to  this  effect  contained  in  the  opinions 
of  this  commission  of  1890. ' 

(D.) 

The  dismissal  of  this  claim  hy  the  commisssion  appointed  under  the 
act  of  1885.,  and  which  met  in  1890.,  urns  for  want  of  jurisdiction  only 
and  is  not  a  har  to  or  a  final  adjudicoMon  of  the  claim. 

This  claim  was  presented  to  the  commission  which  met  in  1890  and 
was  by  it  dismissed  upon  the  ground  that  it  was  not  within  the  juris- 
diction of  the  commission,  not  }>eino-  a  claim  which  had  been  before 
the  commission  of  1867.  The  dismissal  was  expressly  for  want  of 
jurisdiction  and  without  prejudice  to  the  prosecution  of  the  claim 
elsewhere. 

The  contention  of  the  Venezuelan  authorities  that  in  dismissing  for 
want  of  jurisdiction  the  coumiissioners  must  necessarily  have  deter- 
mined the  merits  of  the  claim  or  that  the  dismissal  without  prejudice 
to  the  prosecution  of  the  claim  elsewhere  meant  necessarily  elsewhere 
than  as  against  Venezuela  are  propositions  too  manifestly  unreason- 
able to  need  further  discussion.  The  principle  is  recognized  l)y  every 
code  of  municipal  law  and  is  basic  to  international  or  public  law  as 
well,  that  in  order  to  constitute  a  bar  or  an  adjudication  of  the  claim 
there  must  have  been  a  hearing  and  decision  upon  the  merits,  and  that 
a  dismissal  for  want  of  jurisdiction,  which  means  for  want  of  power 
to  hear  or  determine  a  claim,  necessarily  means  that  the  commission 
did  not  hear  or  decide  the  merits  of  the  case. 

The  powers  of  this  present  Commission  are  moreover  expressly 
extended  by  the  protocol  to  include  all  claims  owned  by  citizens  of 
the  United  States.  Upon  this  power  there  is  no  limitation  or  restric- 
tion whatsoever.  If  a  claim  exists  in  favor  of  a  citizen  of  the  United 
States,  this  Commission  has  the  power  to  consider  and  deterniine  it, 
and  hence  necessarily  to  consider  and  determine  whether  there  is  or  is 
not  a  valid  claim. 

There  can,  therefore,  be  no  valid  objection  to  interpose  to  the  trial 
and  determination  of  this  claim  by  the  present  Commission. 

III. 

TliG  honds  owned  hy  the  claimants  are  valid  and  enforceaUe  obliga- 
tions of  the  Repuhlic  of  Yenezuda. 

Upon  the  former  hearing,  as  appears  from  the  papers,  some  objection 
was  raised  by  the  Venezuelan  authorities  that  these  ])onds  were  not 
obligations  of  the  Republic  of  Vejiezuela,  but  only  of  the  State  of 
Caracas.  This  contention  is  manifestly  unsupported.  The  obliga- 
tions of  the  bonds  purport  upon  their  face  to  be  obligations  issued  by 
the  National  Government,  and  the  facts  show  that  they  were  issued  by 
what  purported  at  least  to  be  at  that  time  a  de  facto  National  Govern- 


294  REPORT  OF  ROBERT  C.  MORRIS. 

niciit  of  the  Rcpul)lic  of  Voiiczucla.  It  is  a  diifcrent  question,  of 
courso,  wbothor  tiiov  arc  obliu-ations  of  Venezuela  at  all,  ])ut  there  can 
ho  no  question  ujioii  the  facts  that  if  they  are  valid  obligations  they 
are  oblioations  of  the  nation  or  of  the  llepublic  of  Venezuela  as  an 
entirety  and  not  of  any  particular  State  thereof. 

It  is,  nioreovei',  clear,  we  think,  from  the  evidence  of  the  case  that 
these  o)>lio-ations  are  l)indino-  and  valid  ol)ligations  on  the  Republic  of 
X'enezuehi.  The  bonds  were  issued  on  the  14:th  day  of  April,  18()3, 
bv  the  Paez  government.  The  contention  of  the  Venezuelan  author- 
ities that  this  was  a  government  de  facto  onl}'^  and  never  became  a 
oovernment  de  jure,  and  that  hence  the  obligations  are  not  binding 
upon  the  present  Government,  can  not,  we  think,  be  sustained,  and 
we  believe  it  is  necessary  to  refer  to  but  one  fact  to  support  our  con- 
tention. The  Paez  government  was,  it  is  true,  in  power  as  a  de  facto 
government  apparentl}^  but  a  short  space  of  time  and  went  out  of 
power  a  short  time  after  the  issuance  of  these  bonds.  If  this  Paez 
government  had  gone  out  of  existence  as  the  result  of  a  counter  revo- 
lution and  destruction  of  its  power,  the  contention  of  the  Venezuelan 
authorities  would,  perhaps,  be  important,  but  it  clearly  appears  and 
is,  moreover,  a  well-known  matter  of  Venezuelan  history  that  the 
Paez  government  was  terminated  by  virtue  of  the  treaty  of  Coche, 
Avhich  was  a  treaty  between  the  contending  parties.  General  Paez  and 
General  Falcon,  by  which  treaty  it  was  expressly  provided  in  the  first 
article  thereof  that  the  federal  arni}^  recognizes  the  Paez  government, 
and  provision  is  made  for  the  meeting  of  the  National  Assembly, 
which  shall  in  substance  and  effect  be  constituted  by  a  reunion  of  the 
two  contending  forces.  This  treaty  is  a  recognition  of  the  Paez  gov- 
ernment as  a  government  de  jure.  The  government  thereafter  estab- 
lished under  this  treaty  became  the  government  de  jure  of  the  country. 
It  is  true  that  the  Paez  government  may  never  have  been  recognized 
by  the  United  States,  but  as  it  was  expressly  recognized  as  having 
been  a  proper  and  legitimate  government  during  the  period  of  its 
existence  by  the  Venezuelan  Government  itself,  and  as  the  subsequent 
government  arose  not  from  an  overthrow,  but  from  a  coalition  of  this 
government  w^ith  its  contending  forces,  it  can  not  be  contended  but 
that  the  Paez  gov^ernment  was  during  the  period  of  its  existence  the 
actual  government  and  the  only  government  of  the  Republic  of  Vene- 
zuela, and  that  its  acts  while  in  power  were  the  acts  of  and  the  obli- 
gations it  created  the  obligations  of  the  Republic  of  Venezuela. 

It  is  a  well-established  principle  of  international  law  that  debts 
created  by  one  properly  constituted  government  become  and  remain 
binding  obligations  upon  the  succeeding  governments.  See  this  prin- 
ciple laid  down  in  Wheaton's  International  Law,  2d  ed.,  p.  52: 

As  to  public  debts,  whether  due  to  or  from  the  revolutionary  state,  a  mere  change 
in  the  form  of  government  or  in  the  person  of  the  ruler  does  not  affect  their  obli- 
gation. The  essential  form  of  this  state,  that  which  constitutes  it  an  independent 
comnumity,  remains  the  same;  its  accidental  form  only  is  changed.  The  debts 
Vjeing  contracted  in  the  name  of  the  state,  by  its  authorized  agents,  for  its  public 
use,  the  nation  continues  liable  for  them,  notwithstanding  the  change  in  its  internal 
constitution.  The  new  government  succeeds  to  the  fiscal  rights  and  is  bound  to  the 
fiscal  obligations  of  the  former  government. 

There  can,  therefore,  we  contend,  be  no  question  that  the  bonds 
issued  to  Nathaniel  Jarvis  were  issued  by  proper  authority  of  the 
Venezuelan  Government  and  became  and  have  remained  a  valid  and 
binding  obligation  upon  that  Government. 


REPORT  OF  ROBERT  C.  MORRIS.  295 

IV. 

These  honds  were  hased  tq)on  sufficient  consideration. 

It  probably  follows  as  a  matter  of  public  law  that  if,  as  we  have 
seen,  these  bonds  were  issued  under  and  by  the  authority  of  what  was 
at  the  time  the  properly  constituted  and  only  Government  of  Vene- 
zuela, a  question  of  their  consideration  could  not  be  raised  by  the  sub- 
sequent governments. 

It  clearly  appears,  however,  from  the  facts  of  this  case  that  there 
was  an  ample  consideration  for  the  issuance  of  these  bonds. 

In  considering  this  question  the  distinction  must  be  borne  in  mind 
between  considerations  of  such  a  character  as  to  render  enforceable  an 
implied  contract,  and  those  considerations  which  are  more  moral  in 
their  nature  and  3'et  support  a  contract  actually  made,  as,  for  example, 
a  bankrupt  who  has  been  discharged  is  under  no  legal  obligation  to 
pay  his  former  debts,  but  the  existence  of  such  former  debts  has  been 
uniformly  held  to  be  a  sufficient  consideration  to  support  a  new  prom- 
ise to  pay. 

Again  it  must  be  borne  in  mind  that  the  question  of  the  morality  of 
the  consideration  must  be  viewed  from  the  standpoint  of  the  Paez 
government,  not  from  the  standpoint  of  the  government  which  the 
Paez  government  overthrew,  nor  from  the  standpoint  of  his  opponents 
who  subsequently  united  with  Paez  in  the  formation  of  a  new  form  of 
government.  The  Paez  government,  as  we  have  seen,  must  be  regarded 
as  the  established  Government  of  Venezuela  during  the  period  of  its 
existence,  and  that,  if  for  no  other  reason,  because  of  its  recognition 
by  the  treaty  out  of  which  the  subsequent  government  arose.  It  nmst 
therefore  be  conceded  that  the  revolution  headed  by  Paez  was  a  mer- 
itorious and  proper  one,  and  that  hence  obligations  incurred  by  the 
Paez  party  in  establishing  themselves  were  proper  obligations  for 
recognition.  This  being  so,  as  a  matter  of  moral  obligation  on  the 
part  of  the  Paez  government  it  made  no  difference  whether  the  con- 
sideration for  which  these  bonds  were  issued  was  services  and  supplies 
rendered  to  the  Paez  party  in  their  attack  upon  the  previous  govcrn- 
iiient  which  succeeded,  or  in  the  preceding  attack  made  by  the  same 
party  which  did  not  succeed.  The  moral  obligation  remains  the  same, 
although  there  might  not  have  been  and  probably  would  not  be  any 
legal  right  to  enforce  the  obligation  upon  the  Paez  government  as  a 
contract  incurred  by  it.  ^     •        ^ 

It  can,  moreover,  make  no  difference  that  from  the  standpomt  of 
other  outside  nations,  including  the  United  States,  the  rendering  of 
aid  to  the  Paez  government  in  its  attacks  upon  the  previous  Govern- 
ment of  Venezuela  were  not  things  to  ])e  encouraged;  as  the  Paez 
revolution  succeeded  it  nmst  be  held,  as  a  matter  of  international  law, 
that  its  cause  was  just.  In  any  event,  however,  the  sole  question  as 
to  consideration  which  can  come  before  the  present  Commission,  or 
upon  which  the  bonds  could  be  held  invalid,  was  whether  tliore  was 
on  the  part  of  the  Paez  government  in  1803  at  the  time  when  it  was, 
as  we  have  seen,  the  proper  and  only  Government  of  Venezuela,  a 
sufficient  consideration,  moral  and  otherwise,  for  the  issuance  of  these 

bonds.  '        ^  .  rn     .         i. 

The  facts,  we  think,  are  clearly  that  there  did  exist  a  sufficient  con- 
sideration in  this  respect. 


2iK)  REPORT  OF  ROBERT  C.  MORRIS. 

V. 

An  award  s/iould  he  made  in  favor  of  the  claimants  for  the  full 
amount  of  $81^000  ofhonds^  with  interest  froin  A]yril  IJf.^  1863. 

These  bonds,  being  as  we  have  seen,  valid  written  obligations  of  the 
Ropu))lic  of  Venezuela  and  the  claim  falling  within  the  jurisdictional 
powers  of  this  Conunission,  an  award,  we  submit,  should  be  made  for 
the  full  amount  of  these  bonds,  the  chiim  being  based  upon  contractual 
obligations  bearing  interest  and  there  having  been  no  laches  in  the 
presentation  of  the  claim  to  the  Government  of  Venezuela  nor  to  the 
Government  of  the  United  States  for  its  intervention,  interest  should 
be  allowed  for  the  full  time  called  for  by  the  bonds.  The  interest  from 
April  14,  1863,  to  June  1,  1903,  amounts  to  $227,529. 

Respectfull}"  submitted. 

Robert  C.  Morris, 
Agent  (f  the  United  States. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America  and 
the  Republic  of  Venezuela. 

In  the  matter  of  Susanna  Maud  Jarvis  and  Rebecca  Josephine  Jarvis, 

claimants. 

Your  Honors:  Pursuant  to  instructions  received  by  me  from  the 
Department  of  State  of  the  United  States  of  America,  I  hereby  request 
that  in  the  event  of  an  award  being  rendered  by  your  honorable  body 
in  favor  of  the  above-named  claims,  a  reservation  of  all  rights  and 
equities  shall  be  made  for  the  benefit  of  all  assignees  under  said  claim. 
The  claims  of  such  assignees  will  subsequently  be  determined  by  the 
Department  of  State  of  the  United  States  of  America  in  the  event  of 
a  favorable  award. 

Very  respectfully,  Robert  C.  Morris, 

Agent  of  the  United  States. 

Caracas,  Venezuela,  June  19^  1903. 

[Translation.] 

Susanna  Maud  Jarvis  and  Rebecca 

Josephine  Jarvis  ^  Claim  No.  21. 

V. 

Venezuela. 

ANSWER. 

Uonorahle  Memhers  of  the  Yenesuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  Susanna  Maud  Jarvis 
and  Rebecca  Josepliine  Jarvis,  American  citizens,  arising  out  of  bonds 
issued  by  the  Republic  in  favor  of  the  predecessor  in  interest  of  the 
claimants  for  the  value  of  $81,000,  besides  interest  since  the  14th  of 
April,  1863,  calculated  at  the  rate  of  7  per  cent,  and  respectfully  shows 
to  the  tribunal: 


REPORT  OF  ROBERT  0.  MORRIS.  297 

The  American  citizen,  Nathaniel  Jarvis,  presented  to  the  Mixed 
Claims  Commission  which  met  in  Washington  during  the  year  1890 
this  same  claim  which  was  rejected  by  that  tribunal  at  the  instance  o:^ 
the  agent  for  Venezuela  for  want  of  jurisdiction  without  prejudice  to 
its  prosecution  through  a  different  channel.  It  has  been,  before  this, 
the  object  of  many  diplomatic  interviews  and  of  a  long  correspondence 
between  the  agents  of  the  two  Governments  in  which  the  inadmissi- 
bility of  the  claim  has  always  been  sustained  on  the  part  of  Venezuela 
being  founded  upon  arguments  of  an  irresistible  weight. 

In  fact,  according  to  article  8  (5)  of  the  convention  concluded  between 
the  Republic  of  Venezuela  and  the  United  States  on  the  25th  of  April, 
1866,  to  create  a  mixed  commission  which  should  take  cognizance  of 
claims  pending  on  the  day  of  its  installation  of  citizens  of  the  last- 
named  country  against  the  first — 

The  decisions  of  this  Commission  and  those  (in  case  there  may  be  any)  of  the  umpire 
shall  be  final  and  conclusive  as  to  all  claims  *  *  *  those  which  shall  not  be  pre- 
sented within  the  twelve  months  herein  prescribed  shall  be  disregarded  by  both  Gov- 
ernments and  considered  invalid. 

Now,  then,  the  claim  of  Mr.  Jarvis  was  not  presented  to  the  mixed 
commission  which  met  at  Caracas  in  1867-68,  since  it  is  not  mentioned 
in  the  reports  of  its  members;  therefore  it  is  just  to  say  that  on  account 
of  such  omission  it  remained  in  the  class  of  those  disregarded  and 
considered  invalid  by  both  Governments,  all  the  more  since  the  facts 
upon  which  it  is  founded  happened  before  the  year  1868.  It  is  com- 
pliance with  a  public  treaty  which  is  invoked. 

It  is  true  that  when  Venezuela  brought  to  light  the  various  frauds 
in  the  judgments  of  said  commission,  and  there  was  a  new  one  created 
to  review  them  by  the  convention  of  the  5th  of  December,  1886,  it  was 
stipulated  in  Article  XI — 

The  decisions  of  the  Commission  organized  under  this  present  convention  shall  be 
final  and  conclusive  as  to  all  claims  presented  or  proper  to  be  presented  to  the  former 
mixed  commission. 

But  such  article  could  not  revive  a  claim  which,  having  existed  since 
1863  and  the  interests  on  which  had  been  demanded  from  the  Crovoi-n- 
ment  by  the  legation  of  the  United  States  at  Caracas  in  1861:  and  1865, 
was  not  presented  to  the  Commission  in  1867  and  1868. 

Nevertheless,  it  was  presented,  as  has  already  been  said,  to  the  mixed 
commission  convoked  in  Washington  in  1888-1890,  which,  on  the  12th 
of  August,  rejected  it  for  want  of  jurisdiction. 

The  said  commission  decided  likewise  as  to  four  more  cases,  one  of 
them  that  of  Mr.  Henry  Woodruff,  which  there  is  at  present  an  attempt 
to  renew  also  before  this  commission,  to  whom  bonds  were  issued  at 
til, 000  each. 

From  the  19th  of  May,  1892,  Mr.  Woodruff  had  made  a  represen- 
tation to  the  Senate  of  his  country  to  incorporate  his  claim  in  a  new 
convention  with  Venezuela  in  order  that  it  might  be  examined  and 
decided y^//"  f/w  third  time. 

Although,  on  the  19th  of  January  of  that  year,  there  was  a  now 
convention  of  arbitration  celebrated  between  the  two  countries,^this 
was  limited  to  the  claim  of  the  Venozuchm  Steam  Navigation  Com- 
pany or,  be  it,  to  Mr.  John  Ilancox,  and  the  Government  of  the  United 
States  did  not  ask  that  there  l)e  inchided  in  it  tlic  chiim  of  Mr.  AV'ood- 
ruff,  nor  the  other  four  wliich  had  })een  the  object  of  a  simihir  award 
on  the  part  of  the  mixed  commission. 


298  REPORT  OF  ROBERT  C.  MORRIS. 

Now  there  is  presented  to  this  tribunal  the  claim  of  Mr,  Jarvis,  but 
the  IkiikIs,  the  payment  of  which  is  demanded,  are  not  produced,  nor 
the  documents  relative  to  their  issuance,  and  thus  there  can  be  formed 
no  idea  of  the  leo-itimac}'  of  their  issue.  As  it  appears,  the  origin  of 
said  debt  ariose  from  aid  lent  to  General  Paez  in  a  revolution  against 
the  (TO\ernment  of  Venezuela.  If  this  is  true,  the  following  reason- 
ing may  be  deduced:  In  accordance  with  our  civil  code  for  the  validity 
of  sucli  contracts  four  essential  conditions  are  recjuisite.  One  of  them 
is  the  legitimtite  consideration  to  obligate  oneself.  Article  1091  says: 
"An  obligation  without  consideration,  or  founded  upon  a  false  or  ille- 
gal consideration,  has  no  effect.''  (Art.  1130,  Code  Napoleon;  Art. 
1118,  Italian  Civil  Code.)  Article  1091  says:  "The  consideration  is 
illegal  when  it  is  contrary  to  law,  to  good  morals,  or  to  public  order." 
(Arts.  1133,  French  Civil  Code;  and  1022,  Italian  Civil  Code.)  By  arti- 
cle 1095  it  is  provided,  "When  an  illegal  consideration  constitutes  a 
crime  common  to  both  contracting  parties  which  is  subject  to  punish- 
ment, proceedings  shall  be  instituted  against  both." 

The  undersigned  cites  the  local  law  because  the  contracts  between  a 
sovereign  and  an  individual  belong  only  to  civil  law.  (See  Geffoken, 
Note  to  paragraph  82  of  International  Law  of  Europe  by  A.  G. 
Heffter.) 

Moreover,  according  to  this  last-named  author,  in  his  said  treatise 
of  international  law,  a  legal  consideration  is  the  first  essential  condi- 
tion of  a  public  treaty  and  thus  the  ph3^sical  and  moral  object  of  a 
treaty.  Thus  a  contract,  contrary  to  the  moral  order  of  the  world, 
could  not  have  any  validity,  for  example,  one  which  would  favor 
slavery;  one  that  would  cause  the  cessation  of  commerce  between 
several  nations;  one  which  might  stipulate  the  violation  of  obligations 
contracted.  Bello  sets  forth  that  treaties  are  null  on  account  of  the 
inequity  or  turpitude  of  the  consideration. 

For  the  reasons  stated,  the  claim  ought  to  be  rejected. 

Caracas,  July  13,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  SusanuaMaud  Jarvis  and  Rebecca  Joseph- 
ine Jarvis,  claimants, 

V. 

The  Republic  of  Venezuela. 


1-  No.  21. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

In  the  answer  of  Venezuela,  in  the  above-entitled  matter,  it  is  con- 
tended that  the  bonds  out  of  which  this  claim  arises  are  not  produced, 
and  that  thus  there  can  be  no  idea  formed  as  to  the  legitimacy  of  their 
issue.  In  reply  to  this  we  desire  to  state  that  the  original  bonds  in 
this  matter  are  now  and  have  been  since  the  submission  of  this  claim 
on  file  in  the  legation  of  the  United  States  in  Caracas,  subject  to  the 
orders  of  this  Commission. 


EEPOKT  OF  ROBERT  C.  MORRIS.  299 

II. 

In  the  answer  of  Venezuela  it  is  also  stated  that — 

the  claim  of  Mr.  Jarvis  was  not  presented  to  the  mixed  commission  which  met  at 
Caracas  in  1867-68,  since  it  is  not  mentioned  in  the  reports  of  its  members;  there- 
fore it  is  just  to  say  that  on  account  of  such  omission  it  remained  in  the  class  of 
those  disregarded  by  both  Governments,  all  the  more  since  the  facts  upon  which  it 
is  founded  happened  before  the  year  1868. 

This  statement  is  onlj-  pai-tially  correct.  The  claim,  to  be  sure,  was 
not  presented  to  the  Caracas  commission,  but  it  was  in  no  sense  disre- 
garded and  considered  invalid  by  both  Governments,  for  Mr.  Evarts, 
the  Secretary  of  State  of  the  United  States,  in  his  letter  of  January 
28,  1878,  to  Mr.  John  R.  Brady,  says: 

In  reply  I  have  to  state  that  it  appears  upon  examination  that  the  claim  in  ques- 
tion was  not  among  those  submitted  to  the  Venezuelan  Commission,  it  having  l)een 
previously  admitted  by  the  Venezuelan  Government. 

And  Mr.  Evarts  also  added: 

It  appears  by  the  dispatch  of  the  United  States  legation  at  Caracas  that  the  claim 
was  presented  by  Mr.  Culver,  the  United  States  minister  at  Caracas,  to  the  Vene- 
zuelan Government  in  1864,  but  that  that  Government,  although  recognizing  the 
claim,  has  taken  no  steps  in  regard  to  its  payment. 

This  presentation  by  Mr.  Culver  was  merely  for  arrears  in  interest. 

In  addition  to  this  Mr.  Scott,  the  United  States  minister  at  Caracas, 
informed  the  Department  of  State  in  his  dispatch  of  January  li,  1889, 
that  in  compliance  with  its  instructions  he  had  sought  an  interview 
with  the  Venezuelan  minister  of  foreign  affairs  and  had  been  informed 
by  him  that  the  claimant  must  submit  his  claim  to  the  claims  commis- 
sion then  about  to  convene  in  Washington  under  the  convention  of 
December  5,  1885,  between  Venezuela  and  the  United  States.  _  When 
this  claim  was  submitted  to  the  commission  which  sat  at  Washington, 
the  counsel  for  Venezuela,  on  August  12,  1890,  moved  that  it  should 
be  dismissed,  and  it  was  accordingly  dismissed  for  want  of  jurisdiction, 
without  prejudice,  however,  to  the  prosecution  of  the  claim  elsewhere. 

It  is  evident  from  this  that  the  Government  of  Venezuela  recognized 
the  claim  and  insisted  on  its  submission,  although  her  counsel,  whether 
acting  under  direct  instructions  or  upon  his  own  initiative,  subse- 
quently moved  for  its  dismissal.  This  dismissal,  however,  can  in  no 
sense  be  regarded  as  a  l)ar  to  the  claim  before  this  Commission,  f()r 
the  principle  is  recognized  in  every  code  of  municipal  law  and  is  basic 
to  international  or  public  law  as  well,  that  in  order  to  constitute  a  l)ar 
or  an  adjudication  of  the  claim,  there  nmst  have  been  a  hearing  and  a 
decision  upon  the  merits,  and  that  a  dismissal  for  want  of  jurisdiction 
means  simply  a  want  of  power  to  hear  or  determine  the  claim,  and  nec- 
essarily means  that  the  commission  did  not  hear  or  decide  the  merits 
of  the  case.  It  is  evident  from  the  foregoing  that  this  case  was  not 
one  of  that  class  of  cases  which  was  disregarded  and  considered  invalid 
by  ))oth  (iovernments,  and  it  is  also  evident  that  this  Commission  has 
full  power  to  examine  it  and  to  decide  it. 

111. 

Objection  is  raised  by  Venezuela  to  the  consideration  for  the  issu- 
ance of  these  bonds  as  h'cing  void  as  against  public  policy.  Wc  submit 
that  the  Government  itself  which  issued  these  bonds  was  i\w  solo 
judge  whether  or  not  it  should  assume  a  given  public  obligation  ana 


300  REPORT  OK  ROBERT  0.  MORRIS. 

that  its  action  is  not  subieet  to  review  by  any  succeedino-  crovernmcnt, 
and  that  the  validity  of  the  consideration  can  not  be  questioned.  In 
tht>  diH'roo  of  April  14,  1808,  the  consideration  for  the  issuance  of 
those  bonds  is  clearly  set  forth  as  follows: 

And  the  Government,  considoriiijj;  that  the  service  rendered  by  Mr.  Jarvis  in  the 
period  mentioned  was  very  opportnne,  since  its  object  tended  to  defend  the  canse  of 
morality  nnder  the  anspfces  of  the  illnstrious  citizen,  overthrowing  tlie  ominous 
domination  tliat  oppressed  the  Repnl)lic,  and,  moreover,  that  it  would  not  be  just 
nor  right  that  that  foreigner  who  so  generously  contributed  to  aid,  with  uncommon 
disinterestedness,  the  triumph  of  the  same  cause  whose  principles  this  day  prevail 
under  the  administration  of  a  great  munljer  of  citizens  who  fought  for  it,  should 
suffer  damages  for  the  default  of  the  i)ayment  of  a  claim  to  a  certain  point  sacred; 
and.  finally,  that  the  application  of  said  objects  to  the  end  designed,  is  justified,  the 
(iovernmeiit  resolves  that  the  credit  which  Mr.  Nathaniel  Jarvis  claims,  with,  more- 
over, the  interest  of  7  per  cent  per  annum,  be  admitted. 

We  submit  that  nothing  could  be  clearer  as  a  recognition  on  the 
part  of  the  Government  of  Venezuela  than  the  decree  above  quoted, 
both  as  to  the  obligation  and  the  morality  of  its  consideration.  No 
succeeding  government  can  challenge  the  action  of  its  predecessor  in 
issuing  obligations  of  this  character.  See  Taylor,  International  Public 
Law,  section  101,  citing  Twiss,  Vattel,  Wolf,  and  Heflter: 

Neither  a  change  in  the  person  of  its  ruler  nor  a  complete  transformation  in  the 
internal  organization  of  its  government  can  affect  the  treaties  or  public  debts  of  a 
state,  so  long  as  the  corporate  identity  remains.  As  the  people  as  a  whole  were 
bound  at  their  creation  by  the  acts  of  authorized  agents,  each  new  government  suc- 
ceeds not  only  to  the  fiscal  rights  but  to  the  fiscal  obligations  of  its  predecessor. 
The  obligation  to  pay  all  debts  previously  contracted  endows  each  new  government,  of 
course,  with  the  public  domain  and  all  other  property  to  which  the  state  is  entitled. 

Also,  in  the  commission  which  was  established  on  November  25, 
1862,  between  the  United  States  and  Ecuador  for  the  settlement  of 
claims,  the  umpire.  Dr.  Alcides  Desturge,  a  citizen  of  Venezuela  who 
is  reported  to  have  been  '•''an  accomplished  scholar,  student,  and  a 
man  of  inestimable  integrity,"  held  in  the  claim  of  R.  W.  Gibbes, 
founded  upon  a  bond  issued  by  the  Republic  of  Colombia: 

By  this  article  of  the  convention,  which  is  the  fundamental  basis  of  the  labors  of 
the  INIixed  Commission,  we  see  that  in  order  to  establish  the  right  to  present  a  claim 
the  nationality  of  the  claimant  is  what  is  insisted  upon,  and  not  the  origin  of  the 
claim,  because,  both  impliedly  and  hy  common  sense,  it  is  assumed  that  the  perfect 
right  of  a  creditor  is  founded  only  in  a  document  duly  executed  by  the  debtor. 

Also  see  Phillimore's  International  Law,  Volume  II,  page  8,  citing 

Vattel: 

Les  emprunts  [Vattel  says  with  great  precision]  faits  pour  le  service  de  I'Etat,  les 
dettes  cre^s  dans  radministration  des  affaires  publiques,  sont  des  conlrats  de  droit 
eiroit,  ol)ligatoires  pour  I'Etat  et  la  nation  entiere.  Rien  ne  pent  la  dispenser 
d'acquitter  ces  dettes-la.  Des  qu'elles  out  ete  contractees  par  une  puissance  l^itime, 
le  droit  du  creancier  est  in^branlable. 

IV. 

These  bonds,  which  were  issued  in  two  series,  matured,  respectively, 
in  the  years  1868  and  1873,  are  not  barred  by  any  treaty  stipulation, 
cither  in  whole  or  in  part,  or  as  to  their  interest,  and  the  question  of 
the  consideration  of  their  issuance  can  not  be  raised.  We  submit, 
therefore,  that  an  award  should  be  made  for  the  full  amount  of  this 
claim  and  interest. 
Respectfully  submitted. 

Robert  C.  Morris, 
.  Agent  of  the  United  States. 


REPORT  OF  ROBERT  C.  MORRIS.  301 

The   United   States  and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf 
of  Susanna  Maud  and  Rebecca  Josephine  Jar- 
vis,  claimants,  !-  No.  21. 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  hy  Bainbridge,  Commissioner. 
The  Commission  disallows  the  claim. 

September  18,  1903. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf 
of  Susanna  Maud  and  Rebecca  Josephine  Jar- 
vis,  claimants,  \  No.  21. 

V. 

The  Republic  of  Venezuela. 

Bainbridge,  Commissioner. 
The  memorial  states: 

(1)  That  on  or  about  the  14th  day  of  April,  1863,  the  Republic  of  Venezuela  did, 
for  value  received,  duly  make,  execute,  aud  deliver  unto  one  Nathaniel  Jarvis,  a 
native  citizen  of  the  United  States,  its  bonds  or  certificates  of  indebtedness  in  the 
amount  of  eighty-one  thousand  ($81,000)  dollars,  consisting  of  eighty-one  bonds  of 
one  thousand  ($1,000)  dollars  each,  bearing  interest  at  the  rate  of  seven  per  cent  per 
annum,  payable  semiannually,  part  thereof  maturing  within  five  years  from  the  date 
thereof  and  the  balance  within  ten  years  from  said  date. 

(2)  That  thereafter  the  said  Nathaniel  Jarvis,  being  then  still  the  lawful  holder 
and  owner  thereof,  did,  for  value,  duly  endorse  and  deliver  the  aforesaid  bonds  unto 
his  nephew,  Nathaniel  Jarvis,  jr.,  a  native  citizen  of  the  United  States,  who  remained 
the  lawful  owner  and  holder  thereof  until  the  time  of  his  death,  which  occurred  on 
the  tenth  day  of  Januarv,  1901;  that  the  said  Nathaniel  Jarvis,  jr.,  left  a  last  will 
and  testament,  by  which  he  devised  and  bequeathed  all  his  property  to  his  two 
daughters,  the  claimants  herein,  whereby  said  claimants  l)ecame  the  lawful  owners 
and  holders  of  said  bonds. 

(3)  That  said  bonds  were  at  their  maturity  duly  presented  for  payment,  but  that 
payment  of  both  principal  and  interest  has  been  most  unjustly  withheld  from  the 
claimants  and  their  predecessors  in  interest  by  the  Repul)lic  of  Venezuela,  without 
anv  legal,  equitable,  or  moral  excuse  or  justification,  and  that  there  was  on  April 
14,"  1903,  justly  due  and  owing  to  claimants  b>  the  Republic  of  Venezuela  on  the 
said  bonds  the  sum  of  $307,800  principal  and  simple  interest. 

(4)  That  no  other  person  has  any  interest  in  the  claim,  excejiting  that  claimants' 
attorney  and  counsel,  An<ler.«on  Price,  and  one  Charles  M.  Dally  are  contingently 
entitled  for  services  to  a  share  or  part  of  the  recovery;  and  that  twenty-six  of  said 
bonds  have  been  lost  or  mislaid  and  are  not  now  in  the  possession  of  claimants. 

The  bonds  upon  which  this  claim  is  based  are  in  the  following  form: 

[Translation.! 

Republic  of  Venezuela. 

Treasury  of  the  province  of  Caracas.  For  1,000  dollars. 

Bond  in  favor  of  Mr.  Nathaniel  Jarvis,  or  to  his  order,  for  one  thousand  dollars, 
money  of  the  United  States,  payable  in  the  term  of  five  (ten)  years  counted  from 
this  date. 


302  REPORT  OF  robp:rt  c.  morris. 

The  interest  at  the  rate  o£  seven  per  cent  per  annum  which  may  accrue  to  the 
aforesaid  sum  sliall  l>e  paid  every  six  months,  the  whole  in  conformity  with  the 
resohition  of  the  Treasurv  Department  issued  to-day. 

Caracas,  April  14,  1S63". 

The  Comptroller:  ,„•       jn  at? 

(Signed)  A.  Eyzaguirre. 

The  Treasurer:  ,;r  t,    t 

(Signed)  M.  R.  Landa. 

The  resolution  referred  to  in  the  bonds  i.s  in  the  following  terms: 

Department  of  the  Treasury, 

Caracas,  April  14,  1863. 

Resolved,  It  appears  from  the  proceedings  that  Mr.  Nathaniel  Jarvis,  a  citizen  of 
the  United  States  of  North  America,  lent  to  his  excellency  General  Jos(5  Antonio 
Paez,  in  1849,  the  sum  of  twenty-three  thousand  five  hundred  hard  dollars,  in  the 
value  of  a  steamer  named  Jackson  or  Buena  Yhta;  and  also  that  of  fifteen  thousand 
four  hundred  and  fifty  hard  dollars,  in  the  amount  of  three  thousand  equipments 
and  one  hundred  thousand  balled  cartridges,  the  payment,  moreover,  having  been 
stipulated  with  said  Jarvis  of  the  amount  of  two  thousand  four  hundred  and  fifty- 
eight  hard  dollars,  for  various  indemnities,  all  amounting  to  the  sum  of  forty-one 
thousand  four  hundred  and  eight  hard  dollars.  And  the  Government  considering 
that  the  service  rendered  bv  Mr.  Jarvis  in  the  period  mentioned  was  very  opportune, 
since  its  object  tended  to  defend  the  cause  of  morality,  under  the  auspices  of  the 
illustrious  citizen,  overthrowing  the  ominous  domination  that  oppressed  the  Repub- 
lic, and,  moreover,  that  it  would  not  be  just  or  right  that  that  foreigner  who  so  gener- 
ously contributed  to  aid,  with  uncommon  disinterestedness,  the  triumph  of  the  same 
cause,  whose  principles  this  day  prevail  under  the  administration  of  a  great  number 
of  citizens  who  fought  for  it,  should  suffer  damages  for  the  default  of  the  payment 
of  a  claim  to  a  certain  point  sacred;  and,  finally,  that  the  application  of  said 
objects  to  the  end  designed  is  justified,  the  Government  resolves  that  the  credit 
which  Mr.  Nathaniel  Jarvis  claims,  with,  moreover,  the  interest  of  seven  per  cent 
per  annum,  be  admitted.  Instruct  the  auditor-general  to  notify  the  treasury  of  this 
province  to  accredit  in  its  account  the  sum  expressed  of  forty-one  thousand  four 
hundred  and  eight  hard  dollars,  and  the  interest  previous  to  the  liquidation  thereof, 
which  shall  be  satisfied  when  the  embarrassed  circumstances  of  the  national 
exchequer  will  permit  it. 

For  His  Excellency: 

ROJAS. 

It  is  a  copy.     The  subdirector  of  the  department  of  the  treasury. 

(Signed)  J.  A.  Perez. 

Brie%  stated  the  facts  are  that  Gen.  Jose  Antonio  Paez,  who  had 
been  from  1830  to  1838  the  first  President  of  Venezuela,  was  in  181:9  in 
exile.  In  that  3'car  he  undertook  an  expedition  to  overthrow  the  then 
existing  government  of  Venezuela.  It  was  in  aid  of  this  enterprise 
that  Nathaniel  Jarvis,  a  citizen  of  the  United  States,  rendered  General 
IPaez  the  opportune  service  referred  to  in  the  foregoing  resolution,  in 
the  loan  of  the  steamer  Jackson  or  Buena  Vista,  the  munitions  of  war 
and  advances  of  money  designated.  But  the  expedition  was  unsuccess- 
ful, and  the  steamer,  munitions,  and  General  Paez  himself  were  cap- 
tured b\'  the  Government  within  a  few  weeks,  Paez  \<'as  imprisoned 
for  a  time  and  then  was  again  sent  out  of  the  country.  He  went  to 
New  York,  where  he  remained  until  1858,  when  he  was  invited  to  return 
to  Venezuela.  In  1860  he  was  accredited  as  minister  to  the  United 
States.  Returning  to  Venezuela  in  1861,  he  was,  on  August  29,  pro- 
claimed at  a  public  meeting  of  the  citizens  of  Caracas  "Supreme  Civil 
and  Military  Chief  of  the  Republic." 

On  September  10,  1861,  he  took  possession  of  the  Government  as 
Supreme  Chief  of  Venezuela  and  issued  a  decree  containing  the  fol- 
lowing: 


EEPORT  OF  ROBERT  C.  MORRIS.  303 

Thie  people  of  Caracas,  to  whom  entire  liberty  was  left  to  deliberate  in  the  use  of 
their  sovereignty,  spontaneously  ratified  this  vote  and  appointed  me  civil  and  military 
chief  of  the  Republic,  with  full  power  to  pacify  and  reconstruct  it  under  the  popular 
republican  form.  At  La  Victoria  I  was  met  by  the  commission  sent  to  present  me 
the  vote  of  the  capital  ( Caracas )  and  to  request  my  acceptance.  But  I  feel  satisfied, 
fully  satisfied,  with  the  uniformity  of  the  vote  of  Caracas  and  of  this  province  (Cara- 
cas). I  am  still  ignorant  of  the  will  of  the  Republic.  National  opinion  is,  and  has 
always  been,  the  guide  of  my  conduct. 

The  Paez  government  continued  until  June,  1863.  It  was  never 
recognized  b}^  the  United  States  as  the  government  of  Venezuela.  In 
a  dispatch  to  Minister  Culver,  dated  November  19, 1862,  Mr.  Seward, 
Secretary  of  State,  said,  referring  to  the  disordered  condition  of  Vene- 
zuela: 

The  United  States  deem  it  their  duty  to  discourage  that  (revolutionary)  spirit  so 
far  as  it  can  be  done  by  standing  entirely  aloof  from  all  such  domestic  controversies 
until,  in  each  case,  the  State  immediately  concerned  shall  unmistakably  prove  that 
the  government  which  claims  to  represent  it  is  fully  accepted  and  peacefully  main- 
tained by  the  people  thereof. 

And  furthermore 

This  government  has  thus  far  seen  no  such  conclusive  evidence  that  the  adminis- 
tration you  have  recognized  (i.  e.,  the  Paez  government)  is  the  act  of  the  Venezuelan 
State  as  to  justify  acknowledgment  thereof  by  this  Government. 

On  April  21r,  1863,  ten  days  after  the  Jarvis  bonds  were  issued,  the 
treaty  of  Coche  was  signed  between  the  representatives  of  Paez  and 
Falcon  providing  for  a  national  assembh^,  which  convened  on  June  17 
following  and  appointed  General  Falcon  President.  The  Falcon  gov- 
ernment was  subsequently  officially  recognized  by  the  United  States. 

It  is  to  be  observed  at  the  outset  of  the  consideration  of  this  claim 
that  the  bonds  themselves  show  that  they  were  issued  ''  in  conformit}' 
with  the  resolution  of  the  Treasury  Department "  issued  on  the  same 
date.  The  resolution  thus  referred  to  in  the  bonds  states  that  the  con- 
sideration upon  which  they  were  based  was  the  opportune  service  ren- 
dered by  Mr.  Jarvis  to  General  Paez  in  1849,  which  service  "tended 
to  defend  the  cause  of  morality,  under  the  auspices  of  the  illustrious 
citizen,  ovcrthrovnng  the  ominous  domination  that  oiypr&^sedthe Repab- 
lic,''''  and  declares  that  "  it  would  not  be  just  nor  right  that  that  for- 
eigner who  so  generously  contributed  to  aid^  with  uncommon  disinter- 
estedness, the  triumph  of  the  same  cause,  whose  principles  this  day 
prevail  under  the  administration  of  a  great  number  of  citizens  who 
fought  for  it,  should  suffer  damages  for  the  default  of  the  payment  of 
a  claim  to  a  certain  point  sacred."  In  view  of  this  fact  it  is  idle  to 
argue  that  "if  an  inquir}^  could  now  be  made  as  to  whether  the  debt 
represented  by  the  Jarvis  bonds  was  a  legal  one  it  would  establish  a 
dangerous  precedent,"  and  that  "  no  one  would  be  safe  in  buying  and 
selling  national  bonds."  The  Jarvis  bonds  and  the  resolution  of  April 
11,  1863,  are  indissolubly  united,  and,  construed  together,  inform  the 
world  of  the  insufficient  basis  upon  which  they  stand. 

These  bonds,  then,  were  issued  in  consideration  of  the  opportune 
service  and  generous  aid  rendered  by  Nathaniel  Jarvis  to  Genpral  Paez 
in  1849,  in  the  latter's  attempt  to  overthrow  the  then  existing  govern- 
ment of  Venezuela.  There  is  not  the  slightest  doubt  about  tliat.  Nor 
is  there  the  slightest  doubt  but  that  Mr.  Jarvis's  opportune  service 
and  generous  aid  to  General  Paez  in  1849  were  in  violation  of  his  duty 
to  his  country  and  in  disobedience  to  its  laws.  Under  the  Constitu- 
tion of  the  United  States  a  treaty  between  the  United  States  and  a 


304  REPOET  OF  ROBERT  C.  MORRIS. 

foreign  o-ovornnionl  is  part  of  tho  supreme  law  of  the  land.  In  1849 
the  treaty  eoncliuled  .laiiuarv  20,  183(),  between  the  United  States  and 
Venezuela,  was  in  full  force  and  ohlio-ator}'  upon  both  nations,  and  by 
the  tirst  article  of  that  treaty  it  was  declared  that  "there  shall  be  a 
perfect,  tirni,  and  in  viola!  )Ie  peace  and  sincere  friendship  between  the 
United  States  of  America  and  the  Republic  of  Venezuela,  in  all  the 
extent  of  their  possessions  and  territories,  and  between  their  people 
and  citizens,  respectively,  without  distinction  of  persons  or  places." 
The  only  Venezuela  known  to  international  law  in  1849  was  the  recog- 
nized n'overnment  of  that  country,  and  with  it  the  Government  of  the 
United  States  was  at  peace  under  the  treaty.  This  treaty  was  binding 
upon  INIr.  Jarvis  as  a  citizen  of  the  United  States,  and  he  could  law- 
fully do  no  act  nor  make  any  contract  in  violation  of  its  provisions. 

It  Avas  also  provided  in  the  second  section  of  Article  XXXIV  of  the 
treaty  of  January  20,  1836,  that— 

If  any  one  or  more  of  the  citizens  of  either  party  shall  infringe  any  of  the  articles 
of  this"  treaty,  such  citizens  shall  be  held  personally  responsible  for  the  same,  and 
liarmony  and  good  correspondence  between  the  two  nations  shall  not  be  interrupted 
thereby,  each  party  engaging  in  no  way  to  protect  the  offender  or  sanction  such 
violation. 

It  would  seem  to  be  a  fair  inference  from  the  wording  of  the  reso- 
lution of  April  14,  1863,  and  from  all  the  evidence  here  presented, 
that  Jarvis  furnished  General  Paez  with  the  ship  Jackson^  the  3,000 
equipments,  and  100,000  balled  cartridges  from  the  United  States. 
Referring  to  his  preparations  for  the  expedition  of  1849,  General 
Paez,  in  his  Autobiography,  says  (vol.  2,  p.  469): 

Ademas  de  los  recursos  indicados  contaba  con  un  buon  vapor  de  guerra  y  fusiles 
que  debimi  venir  de  los  Estados  Unidos. 

It  is  indisputable  that  Nathaniel  Jarvis,  a  citizen  of  the  United  States 
and  presumabl}^  within  its  jurisdiction,  supplied  General  Paez  with  a 
vessel  and  munitions  of  war  intended  for  use  in  a  military  expedition 
or  enterprise  against  a  Government  and  people  with  whom  the  United 
States  Government  was  at  peace.  The  inference  is  strong,  if  not  irre- 
sistible, that  Jarvis  violated  the  neutrality  laws  of  the  United  States 
in  such  measure  as  to  have  rendered  himself  liable  to  a  criminal  prose- 
cution therefor.     (R.  S.,  sees.  5283  and  5286.) 

The  language  of  the  resolution  of  April  14,  1863,  with  regard  to 
Mr.  Jarvis's  opportune  service  and  generous  contribution  to  the  aid 
of  the  Paez  cause  in  1849,  precludes  the  consideration  of  the  original 
transaction  as  a  mere  commercial  venture  on  the  part  of  Jarvis,  such 
as  might  have  been  undertaken  without  a  violation  of  the  laws  of 
neutrality.  Mr.  Jarvis  was,  according  to  the  evidence,  in  Caracas 
at  the  time  the  bonds  were  issued,  and  the  resolution  undoubtedly 
expresses  the  basis  on  which  he  was  then  urging  his  claim  as  well  as 
the  true  basis  of  the  original  obligation. 

It  is  not  deemed  necessary,  however,  to  determine  whether  Jarvis 
violated  the  letter  as  well  as  the  spirit  of  the  neutrality  laws  of  the 
United  States.  He  did  violate  the  treaty  then  existing  between  the 
United  States  and  Venezuela.  He  did  violate  the  established  rule  of 
international  law  that  when  two  nations  are  at  peace  all  the  subjects  or 
citizens  of  each  are  bound  to  commit  no  act  of  hostility  against  the 
other. 

In  Dewutz  v.  Hendricks,  9  Moore  C.  B.,  586  (S.  C,  2  Bing.,_314), 
it  was  held  to  be  contrary  to  the  law  of  nations  for  persons  residing  in 


REPORT  OF  ROBERT  C.  MORRIS.  305 

England  to  enter  into  engagements  to  raise  money  by  way  of  loan  for 
the  purpose  of  supporting  subjects  of  a  foreign  state  in  arms  against 
a  government  in  friendship  with  England,  and  no  right  of  action 
attached  upon  any  such  contract. 

In  Kennett  v.  Chambers  (14  How.,  38)  the  Supreme  Court  of  the 
United  States  held  that  a  contract  by  an  inhabitant  of  Texas  to  convey 
land  in  that  country  to  citizens  of  the  United  States  in  consideration 
of  advances  of  mone}^  made  b}'  them  in  the  State  of  Ohio  to  enable 
him  to  raise  men  and  procure  arms  to  carry  on  the  war  with  Mexico, 
the  independence  of  Texas  not  having  been  at  that  time  acknowledged 
by  the  United  States,  was  contrary  to  the  latter's  national  obligations 
to  Mexico,  violated  the  public  policy  of  the  United  States  and  could 
not  be  specifically  enforced  by  a  court  of  the  United  States.  In  the 
course  of  his  opinion  in  this  case  Chief  Justice  Taney  said: 

The  intercourse  of  this  country  with  foreigrn  nations  and  its  poHcy  in  regard  to 
them  are  placed  by  the  Constitution  of  the  United  States  in  the  hands  of  the  Gov- 
ernment, and  its  decisions  upon  these  subjects  are  obhgatory  upon  every  citizen  of 
the  Union.  He  is  bound  to  be  at  war  with  the  nation  against  which  the  war-making 
power  has  declared  war,  and  equally  bound  to  commit  no  act  of  hostility  against  a 
nation  with  which  the  Government  is  in  amity  and  friendship.  This  principle  is 
universally  acknowledged  by  the  laws  of  nations.  It  lies  at  the  foundation  of  all 
government,  as  there  could  be  no  social  order  or  peaceful  relations  between  the  citi- 
zens of  different  countries  without  it.  It  is,  however,  more  emphatically  true  in 
relation  to  citizens  of  the  United  States.  For  as  the  sovereignty  resides  in  the  people, 
every  citizen  is  a  portion  of  it  and  is  himself  personally  bound  by  the  laws  which 
the  representatives  of  the  sovereignty  may  pass  or  the  treaties  into  which  they  may 
enter  within  the  scope  of  their  delegated  authority.  And  when  that  authority  has 
plighted  its  faith  to  another  nation  that  there  shall  be  peace  and  friendship  between 
the  citizens  of  the  two  countries  every  citizen  of  the  United  States  is  equally  and 
personally  pledged.  The  compact  is  made  by  the  department  of  the  government 
upon  which  he  himself  has  agreed  to  confer  the  power.  It  is  his  own  personal  com- 
pact as  a  portion  of  the  sovereignty  in  whose  behalf  it  is  made.  And  he  can  do  no 
act  nor  enter  into  any  agreement  to  promote  or  encourage  revolt  or  hostilities  against 
the  territories  of  a  country  with  which  our  Government  is  pledged  by  treaty  to  be  at 
peace  without  a  breach  of  his  duty  as  a  citizen  and  the  breach  of  the  faith  pledged  to 
the  foreign  nation.  And  if  he  does  so  he  can  not  claim  the  aid  of  a  court  of  justice 
to  enforce  it.  The  apj^ellants  say  in  their  contract  that  they  were  induced  to  advance 
the  money  by  the  desire  to  promote  the  cause  of  freedom.  But  our  own  freedom  can 
not  be  preserved  without  obedience  to  our  own  laws  nor  social  order  preserved  if  the 
judicial  branch  of  the  Government  countenanced  and  sustained  contracts  maile  in 
violation  of  the  duties  which  the  law  imposes  or  in  contravention  of  the  known  and 
established  policy  of  the  political  department  acting  within  the  limits  of  its  constitu- 
tional power. 

But  it  is  strongly  urged  here  that  the  nature  of  the  original  con- 
sideration is  immaterial;  that  the  claim  is  upon  the  bonds  of  1863,  not 
upon  the  contract  of  1849;  and  that  the  act  of  the  Venezuelan  Govern- 
ment in  1863  in  recognizing  the  obligation  and  issuing  its  bonds  in 
payment  thereof  was  the  sovereign  act  of  an  independent  nation  and 
was  final  and  conclusive  and  binding  upon  the  Venezuelan  people  and 
all  succeeding  governments  of  that  coiuitry. 

Differences  of  opinion  may  pofrsibly  exist  as  to  the  political  ethics 
which  woidd  justify  a  tempoi-ury  ruler  in  paying  his  personal  debts 
with  national  obligations;  but  certain  I  \'  none  can  exist  as  to  the  k>gal 
proposition  that  a  subsequent  contract  made  in  aid  and  furtherance  of 
the  execution  of  one  infected  with  illegality  partakes  of  its  nature, 
rests  upon  an  illegal  consideration,  and  is  ecjually  in  violation  of  the 
law.  The  opportune  service  rendered  by  Jarvis  in  1849  in  violation 
of  law  created  no  legal  obligation  on  the  part  of  Paez,  much  less  on 
S.  Doc.  317,  58-2 20 


306  REPORT  OF  ROBERT  C.  MORRIS. 

the  part  of  the  Governuiont  of  Venezuela.  And  a  past  consideration 
which  did  not  raise  an  ()])ligation  at  the  time  it  Avas  furnished  will 
support  no  promise  whatever.  (3  Q.  B.,  284;  Harriman  on  Contracts, 
83;  bouvier  Law  Diet.,  title  Consideration.) 

Essentially  the  aroument  of  claimants  is  that  the  bonds  are  special- 
ties,  importing- a  valid  consideration,  and  that  their  issuance  as  the  act 
of  the  Venezuelan  Government,  is  binding  upon  it.  The  claimants 
have  endeavored  to  show  that  the  power,  in  virtue  of  which  the  bonds 
were  issued,  was  the  medium  through  which  the  authority  of  the  State 
was  conveyed  and  by  which  it  was  bound.  In  this  they  have  failed. 
So  far  as  the  claimants  arc  concerned,  the  issuance  of  the  Jarvis  bonds 
was  not  the ''act  of  the  Venezuelan  Government."  It  is  doubtless 
true  that  the  question  whether  the  Paez  government  was  or  was  not 
the  de  facto  government  of  Venezuela  at  the  time  the  bonds  were 
issued  is  one  of  fact.  But  the  decision  of  the  political  department  of 
the  United  States  Government  on  November  19,  1862,  that  there  was 
no  such  conclusive  evidence  that  the  Paez  government  was  fully 
accepted  and  peacefully  maintained  by  the  people  of  Venezuela  as  to 
entitle  it  to  recognition  must  be  accorded  great  weight  as  to  the  fact, 
and  is  in  an  y  event  conclusive  iqxm  its  <nmi  citizens.  And  certainly  the 
evidence  that  the  Paez  government  was  "submitted  to  by  the  great 
body  of  the  people"  was  no  stronger  on  April  14,  1863,  when  the  Jar- 
vis  bonds  were  issued  and  when,  as  a  matter  of  historical  fact,  it  was 
encompassed  by  its  enemies  and  tottering  to  its  fall. 

The  language  employed  by  Mr.  Hassaurek,  in  his  opinion  in  the 
cases  of  the  Medea  and  Good  Return  (3  Moore  Int.  Arb.,  2739),  decided 
by  the  United  States  and  Ecuadorian  Commission  of  1865,  may  not 
inappropriately  be  quoted  here.     He  says: 

A  party  who  asks  for  redress  must  present  himself  with  clean  hands.  His  cause 
of  action'must  not  be  based  on  an  offense  against  the  very  authority  to  whom  he 
appeals  for  redress.  It  would  be  against  all  public  morality  and  against  the  policy  of 
all  legislation,  if  the  United  States  should  uphold  or  endeavor  to  enforce  a  clann 
founded  on  a  violation  of  their  own  laws  and  treaties,  and  on  the  perpetration  of  out- 
rages committed  by  an  American  citizen  against  the  subjects  and  commerce  of 
friendly  nations.  *  *  *  As  the  American  conmiissioner,  I  could  not  sanction, 
uphold' and  reward  indu-ectly  what  the  law  of  my  country  directly  prohibits.  He 
who  engages  in  an  expedition  prohibited  by  the  laws  of  his  country  must  take  the 
consequences.  He  may  win  or  he  may  lose.  But  this  is  his  own  risk;  he  can  not, 
in  case  of  loss,  seek  indemnity  through  the  instrumentality  of  the  government  against 
which  he  has  offended. 

The  claim  must  be  disallowed. 


KEPOET  OF  ROBERT  C.  MORRIS.  307 

The  United   States   and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

DECISION. 

The  United  States  of  America  on  behalf  ] 

of   Susanna  Maud   and   Rebecca  Josephine  | 

Jarvis,  claimants,  ^No.  21. 

V.  I 

The  Republic  of  Venezuela.  I 

The  above-entitled  claim  is  hereb}^  disallowed. 

William  E.  Bainbridge, 

Covfimissioner  on  thej^of't  of  the  United  States  of  America. 

J.  de  J.  Paul, 
ConiTnissioner  on  thejyart  of  Yenezuela. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

Rudolf  Dolge, 
Secretary  on  the  2)(^f"t  of  the  United  States  of  America. 

J.  Padron  Uztariz, 
Secretary  on  the  jxirt  of  Yenezuela. 

Delivered  September  18,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

aiy  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  Henry  Woodruff,  claimant,  I  l^r^   22 

The  Republic  of  Venezuela.  I 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Henr}-  Wood- 
ruff to  recover  the  face  value  of  certain  bonds,  in  the  sum  of  $46, 000, 
with  interest  at  9  per  cent  per  annum  from  July  21,  18(50.  The  interest 
amounts  to  $176,182.42  to  February  17,  1903. 

I. 

statemp:nt  of  facts. 

The  claimant  is  a  natural-born  citizen  of  the  United  States,  resident 
in  the  United  States,  and  is  the  owner  of  46  of  the  bonds  hereinafter 
referred  to.  These  ])onds  were  originally  issued  by  a  corporation 
organized  under  the  laws  of  the  Republic  of  Venezuela,  known  as  the 
Railway  of  the  East.  This  corporation  was  engaged  in  constructing  a 
railroad  under  a  concession  granted  on  the  10th  of  January,  1859,  con- 
ceding the  right  to  erect  and  maintain  a  line  of  railway  from  Caracas 


308  REPORT  OF  ROBERT  C.  MORRIS. 

to  Petare.  On  the  S-ith  of  July,  1860,  tho  said  corporation  made  and 
exooutod  its  several  bonds  in  the  sum  of  $1,(HH)  United  States  currency, 
numbered  from  1  to  !»0,  with  interest  at  9  per  cent  per  annum,  and 
secured  by  a  mortgaoe  upon  the  propci'ties  of  the  railway.  Forty-six 
of  these  bonds,  numbered  from  1  to  46,  have  since,  by  intermediate 
transfers  and  for  face  value,  become  the  property  of  the  claimant. 

Subsequently  ditierences  having  arisen  between  the  Government  and 
the  persons  erecting-  said  railway  as  to  the  subscription  of  the  Gov- 
ernment of  Venezuela  to  the  enterprise,  and  other  matters,  the  Gov- 
ernment of  Venezuela  on  the  19th  of  December,  1863,  took  possession 
of  said  railway  and  assumed  the  obligation  of  paying  said  bonds.  On 
the  20th  day  of  April,  1864,  the  Government  of  Venezuela  sold  said 
railway  to  one  Arthur  Clark,  agreeing  by  said  contract  to  take  up 
and  retire  the  above-mentioned  bonds,  but  subsequently  said  contract 
wasaiuuilled  and  the  control  and  possession  of  said  property  was  again 
taken  and  has  since  continued  to  be  held  by  the  Government  of  Ven- 
ezuela, and  no  part  of  the  principal  or  interest  of  said  bonds  has  ever 
been  paid. 

II. 

The  claimant  is  not  harred  from  presenting  his  claim  hefoiy  this 
Comniissimi  hy  the  findings  either  of  the  Commission  which  met  in  1867 
and  1868,  nor  t/iat  which  met  in  1890. 

The  Commission  of  1867-68  seems  to  have  dismissed  this  claim 
because  the  original  bonds  were  not  presented,  the  dismissal  being 
expressly  upon  the  statement  that  the  claim  was  in  nowise  atfected  or 
invalidated  thereby.  The  commission  of  1890  dismissed  the  claim 
without  prejudice  to  other  prosecution  of  the  claim. 

It  seems  to  be  contended  by  the  Government  of  Venezuela  that  such 
dismissal  without  prejudice  amounts  to  a  final  adjudication  of  the 
claim,  but  such  a  position  can  not  be  seriously  maintained  before  a 
judicial  tribunal.  By  every  principle  both  of  municipal  law  and  of 
international  or  public  law  a  dismissal  without  prejudice  implies  that 
the  merits  of  the  case  have  not  been  passed  upon,  but  that  the  claim 
may  be  again  presented. 

The  dismissal  without  prejudice  in  this  case  was  not  because  of  want 
of  jurisdiction,  it  is  true,  but  because  of  a  finding  that  the  claimant 
had  mistaken  the  nature  of  his  remedy  and  was  not  entitled  to  recovery 
upon  the  theory  of  his  case,  nor  consequently  the  evidence  oilered, 
although  he  was'  evidently  entitled  to  relief,  and  the  dismissal  without 
prejudice  was  made  in  that  form  in  order  that  the  claimant  might 
obtain  relief  upon  presenting  the  proper  claim. 

This  present  Commission  is  the  first  commission  since  that  time 
having  power  to  adjudicate  and  settle  claims  of  citizens  of  the  United 
States  against  the  Government  of  Venezuela,  and  the  claimant  has  no\v 
sought  to  present  his  claim  upon  a  theory  and  basis  on  which  he  is 
clearl}"  entitled  to  relief. 

The  question,  therefore,  arises  before  this  Commission  de  novo 
whether  the  claimant  is  entitled  to  the  relief  sought,  and  in  making 
this  claim  he  is  in  nowise  precluded  by  the  preceding  dismissals  thereof. 


REPORT  OF  ROBERT  C.  MORRIS.  309 

III. 

The  facts  show  a  liability  on  the  part  of  the  Republic  of  Yenezxiela 
for  the  payment  of  the  principal  and  interest  of  these  bonds. 

The  claim  made  before  the  commission  of  1890  seems  to  have  been, 
in  the  first  place,  that  the  Venezuelan  Government  was  liable  for  these 
bonds,  because  it  had  wrecked  the  enterprise  by  not  paying  its  sub- 
scription to  the  capital  stock  thereof.  This  claim  was  held  by  that 
commission  to  be  untenable  and  is  not  made  the  basis  of  the  present 
claim.  The  claim  is  now  based,  first,  upon  the  fact  that  the  Venezue- 
lan Government  took  possession  of  the  railroad  and  annulled  the 
concession.  This  fact  would  be  alone  sufficient  to  support  and  war- 
rant a  finding  in  favor  of  the  claimant.  W  hatever  doubts  may  have 
existed  in  the  majority  of  the  minds  of  the  commissioners  in  1890  as 
to  the  liability  of  the  Government  in  such  a  case,  there  can  be  no 
doubt  that  at  the  present  time  and  in  the  present  state  of  international 
law  there  is  a  liability  on  the  part  of  a  government  taking  possession 
of  a  railroad,  or  other  property,  to  the  bondholders  or  stockholders 
of  that  railroad. 

See  for  full  exposition  of  the  law  upon  this  subject  the  recent  and 
very  able  opinion  of  Sir  Henry  Strong  and  Mr.  Don  M.  Dickinson  in 
the  matter  of  the  arbitration  between  the  Republics  of  the  United 
States  and  Salvador,  in  which  the  principle  of  international  law  is 
plainly  laid  down  that  where  a  government  makes  itself  a  party  to  an 
enterprise  and  contracts  with  individuals  for  the  carrying  out  of  an 
undertaking  it  can  not  annul  the  concession  upon  which  that  enter- 
prise is  based  without  making  itself  liable  for  damages  to  the  other 
parties  to  the  enterprise,  unless  it  itself  proceed  by  due  course  of 
judicial  proceedings  to  have  the  franchise  annulled  upon  proper 
grounds. 

This  principle  is  alone  consonant  to  the  dictates  of  equit}^  and  justice, 
which  form  the  basis  of  international  law,  and  which  are,  by  the 
express  terms  of  the  protocol,  made  binding  upon  the  determinations 
of  this  Commission. 

In  this  case  the  Government  of  Venezuela  brought  no  judicial  pro- 
ceedings to  annul  the  franchise  and  concession  granted  to  this  railway 
company,  but  took  possession  of  its  property  by  a  simple  annullnicnt 
of  the  concession,  thereby  rendering  itself  liable  to  respond  in  dam- 
ages to  all  parties  injured  thereby. 

There  is,  however,  another  ground  upon  which  in  this  case  the  Gov- 
ernment of  the  Republic  of  Venezuela  is  liable  for  the  face  value  and 
interest  of  these  bonds.  The  taking  possession  of  this  railway  seems 
to  have  been  done  not  only  by  an  annullment  of  the  concession,  but 
by  a  contract  and  agreement  with  the  Venezuelan  citizens  inteicstod 
therein,  by  which  the  Government  expressly  recognized  and  assumed 
the  obligations  of  the  railway,  including  these  bonds,  and  this  obliga- 
tion was  again  expressly  recognized  when  the  road  was  sold  to  (Mark. 

There  are  only  two  possible  views  to  be  taken  of  the  facts  of  Mils 
case — eitlier  the  Government  took  possession  of  this  railroad  undci-  a 
contract  by  which  it  assumed  and  agreed  to  pay  these  bonds,  in  which 
case  there  can  be  no  question  as  to  its  liability  therefor,  or  it  usurped 

Possession  of  this  property  without  warrant  or  authority,  and  has 
ence  to  respond  in  dan)ages,  under  the  opinion  of  Sir  Henry  Strong 
and  Mr.  Dickhison  above  referred  to. 


310  REPORT  OF  ROBERT  C.  MORRIS. 

We  think  it  uniicccs.saiy  to  consider  wlietlior  this  usurpation  of 
property  amounted  to  or  did  not  amount  to  a  merger  of  the  corpora- 
tion in  the  (iovernment.  This  rule  of  international  hiw,  to  which  we 
have  rt>fin-red,  is  not  based  upon  any  such  consideration,  but  upon 
tire  broad  principle  that  being  itself  a  party  to  the  contract  from 
which  the  franchise  or  concession  arises,  the  Government  can  not  in 
such  a  case  annul  the  concession  and  take  over  the  property  without 
makino-  itself  Iia])le  for  damages  to  all  the  other  parties  except  by 
])roper  jndicial  proceedings  on  notice  for  proper  cause. 

In  either  view,  therefore,  of  the  facts  of  this  case  the  Government 
of  Venezuela  is  liable  for  the  face  value  of  these  bonds  and  interest. 

IV. 

It  urns  iiot  necessary  for  the  claimant  to  first  have  recourse  to  the 
Venezuelan  trihmals. 

The  concession  under  which  this  railroad  was  built  seems  to  contain 
an  express  provision  that  international  mediation  should  not  be 
resorted  to,  but  recourse  should  be  had  solely  to  the  local  tribunals 
for  determination  of  any  questions  which  might  arise,  and  this  is 
advanced,  although  not  held,  by  the  former  conuuission  as  one  of  the 
objections  to  this  claim.  There  are  two  answers  to  this  proposition: 
First,  as  a  matter  of  international  law,  as  was  expressly  laid  down  by 
Sir  Henr}^  Strong  and  Mr.  Dickinson  in  the  case  above  referred  to, 
where  a  government  seizes  property  as  to  which  it  had  granted  a  con- 
cession, as  in  this  case;  in  other  words,  when  the  government  itself 
becomes  the  wrongdoer  it  can  not  be  heard  to  say  that  this  is  one  of 
the  questions  which  must  be  submitted  to  its  local  tribunals.  The 
questions  to  which  such  a  clause  in  the  concessions  had  reference  were 
necessarily  questions  arising  under  the  concession  and  not  a  question 
of  the  liability  of  the  government  for  destrojdng  the  concession. 

By  the  express  terms  of  the  protocol  by  which  this  present  Com- 
mission is  appointed  it  is  made  to  include  all  claims  owned  by  citizens 
of  the  United  States,  thus  giving  this  Commission  express  power  to 
hear  and  determine  all  such  claims,  wholly  irrespective  of  whether 
they  have  or  have  not  been  submitted  to  any  local  tribunal. 

Again,  the  claimant  was  not  bound  to  first  attempt  to  foreclose  the 
mortgage.  The  claim  which  is  here  made  is  not  strictly  upon  the 
bonds,  but  it  is  a  claim  against  the  Venezuelan  Government  for  its 
wrongful  act  in  destroying  the  value  of  property  upon  which  the  bonds 
were  issued  by  annulling  the  concession  and  itself  taking  over  and 
usurping  the  propert3^  The  bonds  and  their  interest  are  the  measure 
of  damages,  but  the  cause  of  action  is  the  wrongful  act  of  the  Govern- 
ment of  Venezuela  if  it  be  the  fact  that  the  taking  possession  of  the 
property  was  done  b}^  the  Government  of  Venezuela  without  any  con- 
tract or  agreement  to  pay  these  bonds.  If  the  fact  be  that  the 
Government  of  Venezuela  did  agree  to  pay  these  bonds,  then  the 
cause  of  action  is  upon  this  contract  of  the  Government  of  Venezuela, 
and  it  is  liable  upon  this  contract,  wholly  irrespective  of  the  fact  that 
it  was  not  a  part}-  to  nor  originally  obligated  for  the  bonds.  The 
taking  possession  of  the  pi'operty  was  a  sufficient  consideration  for  the 
contract  on  the  part  of  the  Government  of  Venezuela  to  pay  the  bonds, 
and  it  is  a  contract  which  the  claimant  has  a  right  to  enforce  in  this 
tribunal. 

In  either  view  of  the  case  the  Republic  of  Venezuela  is  liable. 


REPORT  OF  ROBERT  C.  MORRIS.  311 

V. 

An  award  should  he  made  in  favor  of  the  claimant  for  the  full  face 
value  of  the  Jfi  honds^  with  interest  at  9  2>€r  cent  from  their  date. 

Whether  the  liability  be  regarded  as  one  of  contract,  to  wit,  a  con- 
tract assuming  and  agreeing  to  pay  these  bonds,  as  part  consideration 
for  the  acquirement  of  the  property,  or  as  one  in  tort  for  the  wrong- 
ful taking  of  the  property  and  annulment  of  the  concession,  in  either 
case,  the  liabilitj'^  is,  as  we  have  seen,  clear;  the  amount  is  fixed  by  the 
face  value  of  the  bonds  and  their  interest,  and  an  award  should  be 
made  accordingly. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Claim  of  Henry  Woodruff,  No.  22. 

ANSWER. 

To  the  honorable  memhers  of  the  Venezuelan- American  Mixed  Com- 
mission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  American  citizen, 
Henry  Woodruff,  growing  out  of  certain  bonds  issued  by  the  Govern- 
ment of  Venezuela,  and  respectfully  shows  to  this  tribunal: 

The  first  time  that  this  claim  was  presented  to  the  commission  of 
1867-68  it  was  dismissed  for  want  of  the  production  of  the  original 
bonds;  the  commission  of  1890  likewise  dismissed  it;  it  is,  therefore, 
a  finished  matter  and  this  tribunal  is  not  competent  to  take  cognizance 
of  it. 

The  claim  had  its  origin  in  the  contract  made  on  the  10th  of  Janu- 
ary, 1859,  with  Messrs.  Flanagan  and  Clark,  associated  with  Messrs. 
Rojas  and  Marcano,  for  the  construction  of  a  railroad  from  Caracas  to 
Petare.  with  the  privilege  of  extending  it  as  far  as  Guarenas  and  Gua- 
tire.  The  Government  subscribed  to  500  shares  of  the  capital  at  the 
par  value  of  $100  each,  and  guaranteed  to  pay  half  of  this  sum  when 
the  necessary  materials  for  the  construction  of  the  road  were  disem- 
barked in  Venezuela,  and  the  other  half  when  the  road  shoidd  1)C  fin- 
ished to  Petare.  Moreover,  a  concession  was  made  of  8,000  acres  of 
uncultivated  land  situated  in  the  province  of  Caracas.  The  contractors 
were  authorized  to  fix  the  limit  of  the  capital  at  $400,000  for  that  part 
of  the  line  running  between  Caracas  and  Petare,  with  the  right  to 
increase  this  sum  if  they  availed  themselves  of  the  privilege  of  extend- 
ing it  beyond.  All  the  necessary  materials  were  to  be  admitted  free 
from  customs  duties.  The  work  was  to  be  begun  and  concluded  within 
one  year,  taking  into  account  unavoida])U^  delays.  The  directors, 
employees,  and  laborers  were  exempt  from  military  service  in  time  of 
peace,"  except  as  reoards  military  exercise.  The  concession  was  exclu- 
sive for  the  period  of  thirty-five  years.  There  was  one  article— the 
twentieth— in  which  it  was  provided  that  all  controversies  arising  out 
of  the  concession  and  relative  to  it  should  be  determined  by  the  court^ 
of  Venezuela  in  ordinary  course  of  procedure,  and  that  neither  such 


312  REPORT  OF  ROBERT  C.  MORRIS. 

controversies  nor  an}'  decision  concerning-  them  should  be  made  the 
subjei't  of  an  international  claim. 

Afterwards  Flanai^an  and  Clark  entered  into  a  separate  contract  with 
their  assot'iates,  Rojas  and  Marcano,  that  they  should  do  a  part  of  the 
work;  and  other  parties  w^ere  added  to  the  contract  to  the  end  of 
obtaininjj-  funds  and  eno-ineers  with  which  to  carry  the  undertaking-  to 
completion. 

As  a  result,  men  and  materials  arrived,  including  rolling  stock,  and 
it  is  said  that  there  only  lacked  30,000  pesos  to  complete  the  road  as 
far  as  Petare.  There  was  ready  a  locomotive  of  18  tons,  a  passenger 
coach  of  the  first  class,  another  of  the  second,  (5  baggage  cars,  4 
platform  cars,  1  hand  car,  666  tons  of  iron  in  rails,  chains,  frogs, 
spikes,  and  switch  rails. 

The  contractors  claimed  then  the  first  $25,000  of  the  subscription 
from  the  Government,  and,  not  obtaining  it,  it  was  declared  they  could 
not  obtain  possession  of  the  rails,  having  moreover  had  difliculty  in 
securing  their  disembarkation  at  La  Guaira,  which  was  in  the  power 
of  the  revolutionists. 

On  account  of  the  disorders  of  the  times  and  the  necessity  of  using 
the  laborers  and  kits  of  tools  of  the  railroad  in  the  service  of  the  war, 
the  materials  remained  in  La  Guaira  exposed  to  the  atmospheric 
inclemencies.  The  contractors  thereupon  proposed  to  the  Government 
to  buy  their  rights  in  the  undertaking,  or  to  permit  them  to  reexport 
the  materials;  and,  both  propositions  being  denied,  they  determined  to 
sell  the  materials  and  their  rights  to  their  Venezuelan  associates,  Rojas 
and  Marcano,  and  to  accept  in  payment  90  bonds  of  the  Compania  del 
Ferrocarril  del  Este,  at  $1,000  each,  with  interest  at  9  per  cent  and 
secured  upon  first  mortgage  of  the  road,  of  the  concession  and  its 
appurtenances.  To  the  consignee  of  the  rails,  who  had  not  been  paid, 
35  of  these  bonds  were  given  for  security  of  his  debt;  55  remained. 
It  seems  that  46  of  these  are  those  claimed  by  Mr.  Woodruti',  and  that 
the  other  9  passed  to  the  hands  of  Messrs.  Kojas  and  Marcano. 

Subsequently  the  purchasers  transferred  all  their  rights  to  the 
Government  of  Venezuela,  which,  canceling  all  pending  subscriptions, 
including  its  own,  proceeded  to  construct  and  make  use  of  the  road. 
It  expended  upon  it  the  sum  of  80,000  pesos.  It  directed  the  pay- 
ment of  18,000  pesos  for  the  rails  in  an  order  against  the  custom-house 
of  La  Guaira,  admissible  in  discount  of  exportation  duties.  A  con- 
cession for  the  road  which  had  been  made  to  an  Englishman,  Mr. 
Arthur  Clark,  was  annulled,  through  his  not  having  fulfilled  the  con- 
ditions of  the  conveyance,  one  of  which  was  to  charge  him  with  all 
responsibility  of  the  undertaking. 

When  Mr.  Woodruff  came  to  Caracas  in  1861,  he  was  notified  that 
he  ought  to  avail  himself  of  his  right  to  proceed  against  Clark,  in 
whose  possession  the  road  then  was.  But,  instead  of  listening  to  this 
counsel,  or  of  appealing  to  other  legal  means  of  settling  his  claim,  he 
confined  himself  to  maintaining  that  by  virtue  of  the  retrocession  of 
the  contract  by  Messrs.  Rojas  and  Marcano  to  the  Government,  the 
company  became  merged  in  the  Government,  with  the  obligation  of 
liability  for  the  nominal  value  of  the  bonds,  with  interest. 

What  is  set  forth  above  is  an  extract  from  the  printed  opinion  of 
Commissioner  Findlay,  who  undertook  the  task  of  showing  the 
unreasonableness  of  the  claim  of  Mr.  Woodruff.  For  this  reason,  as 
well  as  because  he  or  the  other  claimants,  Flanagan,  Bradley,  Clark  & 


REPORT  OF  ROBERT  C.  MORRIS.  313 

Co.,  with  whose  case  his  was  joined,  had  submitted  to  the  decision  of 
the  Venezuelan  courts,  Mr.  Findla}-,  in  accord  with  Mr.  Andrade, 
decided  that  the  claim  should  be  dismissed.  Wh}^  it  was  so  disposed 
of  without  prejudice  to  its  resubmission  through  some  other  channel 
is  not  explained  in  any  way. 

The  commissioners  formed  an  arbitration  tribunal  and  did  not  have 
other  powers  than  those  conferred  by  the  compromise,  that  is  to  sa}', 
in  this  case,  the  conventions  of  April  25,  1866  and  December  5,  1885. 
According-  to  article  5  of  the  former: 

The  decisions  of  this  commission  and  those  (in  case  there  be  any)  of  the  umpire 
shall  be  final  and  conclusive  as  to  all  pending  claims  at  the  date  of  their  installation. 
Claims  which  shall  not  be  presented  within  the  twelve  months  herein  prescribed 
will  be  disregarded  by  both  Governments  and  considered  invalid. 

Article  11  of  the  convention  of  1885,  says: 

The  decisions  of  the  commission  organized  under  this  present  convention  shall  be 
final  and  conclusive  as  to  all  claims  presented  or  proper  to  be  i^resented  to  the  former 
mixed  commission. 

Onl}^  in  this  way  could  be  carried  out  the  compact  which,  as  is  set 
forth  in  the  preamble,  was  to  free  from  embarrassment  the  good 
understanding  of  both  nations,  by  establishing  a  means  of  examining 
and  justly  terminating  the  pending  claims  of  citizens  of  the  United 
States  against  Venezuela,  and  thus  obtaining  at  least  some  of  the 
advantages  attending  arbitration,  as  recommended  in  article  112  of  the 
federal  constitution  of  Venezuela,  in  force  at  that  time. 

Now,  then,  a  decision  which  leaves  open  to  the  claimants  another 
channel  for  submission  of  their  claim  is  neither  final  nor  conclusive, 
much  less  if  it  is  announced  in  the  vague  terms  '■'without  prejudice  to 
its  prosecution  otherwise."  A  definitive  or  final  sentence  is  one  which, 
good  or  bad,  but  in  a  conclusive  manner  shall  end  a  case  forever,  and 
is  made  from  thenceforward  the  truth,  according  to  the  axiom  "  res 
judicata  pro  veritate  habetur." 

If  Mr.  Woodruff  brings  his  cause  before  some  other  authority,  not- 
withstanding that  the  commissioners  did  not  designate  it,  such  author- 
ity may  admit  the  demand  and  revoke  the  decision  by  which  it  was 
dismissed,  and  thus  it  would  be  reduced  to  naught.  Accordingly  such 
a  sentence  by  the  Commission  would  overstep  its  powers  through  not 
holding  it  in  the  only  and  exclusive  sense  of  a  complete  dismissal. 

The  claim  must  therefore  be  disallowed. 

Caracas,  July  13,  1903. 

F.  Arroyo  Pare  jo. 

The  United   States  and  Venezuelan   Claims   C'onnnissiou,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  Henry  Woodruff,  claimant,  !  -kt     qo 

The  Republic  of  Venezuela. 

Bainbridok,  Coiii'tiiissioner: 

On  or  al)Out  the  8th  of  Januar}',  IS.")!),  the  Government  of  Venezuela 
granted  to  Jose  M.  Rojas,  Juan  Marcano,  John  A.  Flanagan,  anrl  William 
Hatfield  Clark  a  concession  to  build  a  railroad  from  Caracas  to  I'etare, 


314  KEroKT  OF  ROBERT  C.  MORRIS. 

Avith  the  priviloo-c  of  exteiidino-  it  to  Guaninas  and  Guatirc,  and  author- 
izod  the  oruanization  of  a  company  or  corporation  for  the  purpose  of 
buildino-  :in(l  eciuipping  said  road.  Pursuant  to  this  concession  a  com- 
pany was  oro-anizod  in  Cai-acas  known  as  the  ''Compafiia  del  Ferro- 
carril  del  Este"  or  ''Comi)any  of  the  Railway  of  the  East,"  which 
corporation  acipured  and  held  all  the  rio'hts,  powers,  privilej,^es,  and 
franchises  oranhnl  or  pei-taining-  to  the  said  line  of  railway  from  Caracas 
to  Petare  :uul  its  extensions  theretofore  held  ))y  the  parties  named  in 
the  orio-inal  concession.  The  capital  stock  of  the  company  was  tixed 
at  40(),b00  pesos  for  that  part  of  the  line  from  Caracas  to  Petare,  the 
company  having-  the  right  to  increase  this  amount  in  case  the  road  was 
extended  beyond  the  latter  point.  The  Government  of  Venezuela  was 
an  original  subscriber  to  the  capital  stock  of  the  company,  taking  500 
shares^and  agreeing  to  pay  therefor  into  the  treasury  of  the  company 
the  sum  of  50,000  pesos;  one-half  of  said  amount  was  to  be  paid  when 
all  the  material  for  the  building  of  the  road  should  be  delivered  in 
Venezuela,  and  the  other  half  thereof  when  the  railroad  should  be 
completed  to  Petare  and  open  to  the  public. 

On  July  10,  1860,  a  contract  was  entered  into  in  Caracas  by  and 
between  Flanagan,  Bardley,  Clark  &  Co.,  a  copartnership,  successors 
in  interest  to  John  J.  Flanagan,  William  Hatfield  Clark,  and  James  F. 
Howell  of  the  one  part,  and  Jose  M.  Rojas  and  Juan  Marcano  of  the 
other  part,  which  provided:     • 

Article  1.  Flanagan,  Bradley,  Clark  &  Co.  sell,  assign,  and  transfer  by  these  pres- 
ents to  the  Eastern  Railroad  Company,  all  the  materials  now  in  this  country  for  the 
construction  of  the  said  railroad  upon  the  following  conditions: 

Art.  2.  The  said  Rojas,  as  president,  and  Juan  Marcano  as  treasurer  of  the  Eastern 
Railroad  Company,  will  issue  to  order  of  Flanagan,  Bradley,  Clark  &  Co.  ninety 
thousand  dollars  ($90,000)  United  States  currency  in  first-mortgage  bonds  secured 
by  a  first  mortgage  on  the  said  railroad  and  all  the  buildings,  effects,  and  lands 
which  may  now  or  hereafter  belong  to  the  said  company  as  per  grant  of  the  Govern- 
ment of  Venezuela  bearing  date  January  8,  1859. 

Article  5  of  the  contract  provided  that  within  one  month  from  its 
date  Rojas  and  Marcano  would  deliver  to  Flanagan,  Bradley,  Clark  & 
Co.  $55,000  of  said  bonds,  whereupon  said  firm  would  deliver  to  Rojas 
and  Marcano  the  invoices  of  all  the  materials  for  the  building  of  the 
railroad.  Article  6  provided  that  whereas  Flanagan,  Bradley,  (^'lark  & 
Co.  were  indebted  to  Congreve  &  Son,  for  a  balance  on  the  iron  then 
in  the  hands  of  Boulton  &  Co.  in  La  Guayra,  if  they  did  not  settle 
said  amount  within  ninety  days  from  the  date  of  the  contract  Marcano 
was  to  pay  said  balance  and  hold  as  his  own  the  remaining  $35,000  of 
bonds  and  apply  the  iron  to  the  building  of  the  road. 

On  the  21th  of  Julj'',  1860,  pursuant  to  said  contract,  Jose  M.  Rojas, 
as  president,  and  Juan  C.  Marcano,  as  treasurer  of  the  "  Compafiia  do 
Ferrocarril  del  Este"  executed  a  mortgage  upon  the  railway  with  all 
its  buildings,  cars,  efi'ects,  tools,  lands,  and  all  that  belonged  or  might 
thereafter  belong  to  said  company,  to  secure  the  bonds  provided  for 
in  article  2  of  the  contract.  This  mortgage  is  declared  to  be  the  only 
mortgage  on  said  property,  and  was  registered  on  the  date  of  its  exe- 
cution. On  the  same  date  the  company  issued  90  coupon  bonds,  of 
il,000  each.  United  State  currency,  bearing  9  per  cent  interest.  The 
bonds  were  in  both  Spanish  and  English  and  read  as  follows: 


EEPORT  OF  EGBERT  C.  MORRIS.  315 

Republic  de  Venezuela,  Caracas  (Sur  America). 

Number .  $1,000. 

Compaiaia  del  Ferrocarril  del  Este. 

Eastern  Railroad  Company's  first  mortgage 
Nine  per  cent  coupon  bond. 

This  bond  of  one  thousand  dollars  United  States  currency  is  one  of  a  series  of 
ninety  of  like  tenor  and  date  iSfeued  to  Flanagan,  Bradley,  Clark  and  Company  by 
the  Eastern  Railroad  Company  and  payable  to  bearer  at  the  office  of  said  railroad 
company  in  the  city  of  Caracas  on  presentation  of  the  coupons  as  they  become  due, 
which  represents  the  principal  and  interest  at  nine  per  cent  per  annum  and  become 
due  July  1st,  1862,  $823.33;  Julv  1st,  1863,  $260.66;  July  1st,  1864,  $243.41;  July 
1st,  1865,  $226.16,  and  July  1st,  1866,  $208.92. 

These  bonds  are  secured  by  a  first  mortgage  upon  said  Eastern  Railroad  from  the 
city  of  Caracas  to  Petare  and  all  its  buildings,  fixtures,  equipments,  appurtenances, 
and  all  the  lands  belonging  to  said  railroad  company  as  per  grant  from  the  Gov- 
ernment of  Venezuela  in  the  original  charter  (about  3,500  fanegadas)  and  bearing 
even  date  herewith.  If  any  one  of  the  coupons  become  due  and  remains  unpaid  for 
ninety  days  the  whole  shall  be  due  and  collectible  upon  a  wish  of  a  majority  of  the 
bondholders. 

(Spanish.)  El  Presidente, 

■JosE  M.  ROJAS. 

El  Tesorerol, 

J.  C.  Marcano. 

(Coupons  annexed  after  signatures.) 

Of  the  90  bonds  thus  issued,  35  were  held  by  Marcano  as  security 
for  the  debt  due  Cong-reve  &  Son  for  the  iron  rails  according-  to  the 
provisions  of  article  6  of  the  contract.  This  left  55  bonds  remaining, 
of  which  number  only  46,  according  to  the  memorial,  were  delivered 
to  Flanagan,  Bradley,  Clark  &  Co.  The  remaining  9  were  retained 
by  Rojas  and  Marcano.  The  memorialist  alleges  that  he  is  the  holder 
and  ownei"  for  valuable  consideration  of  iO  of  said  bonds  and  that  he 
is  entitled  to  claim  the  indemnity  in  respect  of  the  other  6. 

On  the  19th  of  December,  1863,  the  Government  of  Venezuela 
acquired  all  the  rights  of  the  railroad  company  through  a  cession  made 
to  it  by  the  compan}^  and  continued  in  the  sole  possession  of  the  road 
until  the  20th  day  of  April,  1864,  when  the  Government  transferred 
the  railroad  and  everything  connected  therewith  to  one  Arthur  Clarke, 
a  subject  of  Great  Britain,  said  Clarke  agreeing  to  deliver  into  the 
treasury  of  Venezuela  $80,000  in  amount  of  legitimate  public  del)t  of 
the  Government.  Subsequently  the  contract  with  Clarke  was  aniuillcd 
or  abrogated  at  the  instance  of  the  Government  of  Venezuela,  and  the 
control  and  dominion  over  said  enterprise  and  over  the  property  and 
franchises  of  the  corporation  were  resumed  by  the  Government. 

This  claim  was  presented  to  the  commission  appointed  under  the 
treaty  of  April  25,  1866.  The  commission  caused  the  papers  to  be 
returned  to  the  United  States  legation  with  the  following  indorsement 
thereon: 

Dismissed  this  day  from  further  consideration  for  want  of  the  original  bonds,  or  a 
legalized  copy  thereof  not  presented,  and  further  documents  equally  re(|uired,  but 
in  nowise  affected  or  invalidated  by  said  action. 

The  claim  was  also  presented  to  the  commission  appointed  undci-  the 
treaty  of  December  5,  1885,  and  this  commission,  upon  consideration 
and  in  relation  to  the  claim,  made  upon  its  docket  the  following  entry: 

Dismissed  without  prejudice  to  other  prosecution  of  the  claim. 


31  (>  RErOKT  OF  EGBERT  C.  MORRIS. 

The  loarnotl  counsel  for  Venezuela  insists  in  his  answer  that  this 
claim  is  res  adjuelicata.  But  this  position  can  hardly  be  sustained,  in 
view  of  the  fact  that  the  lirst  commission  expressly  declared  the  claim 
was  in  nowise  to  be  aliccted  or  invalidated  by  its  action  in  dismissing 
the  case,  and  that  an  examination  of  the  grounds  on  which  the  second 
t'ommis.sion  based  its  dismissal  shows  that  it  was  because  the  commis- 
sioners were  of  the  opinion  that  "the  cause  of  action  has  been  miscon- 
ceived and  prt)ofs  therefor  not  supplied  that  otherwise  niight  have 
l)een  forthcoming/'  The  claim  is  clearly  one  owned  by  a  citizen  of  the 
United  States  of  America,  mluch  has  not  been  settled  hy  diplomatic 
agreement  or  hij  a rhlt ration,  and  hence  within  the  jurisdiction  of  this 
Oommission  under  the  terms  of  article  1  of  the  protocol. 

Various  legal  technicalities  have  been  and  still  are  insisted  upon  in 
relation  both  to  the  presentation  and  the  defense  of  the  claim.  It  is 
not  deemed  necessary  to  review  these  here.  Substantially  the  facts 
are  that  Flanagan,  Bradley,  Clark  &  Co.  sold,  assigned,  and  trans- 
ferred to  the  Eastern  Railroad  Company  all  the  materials  for  the  con- 
struction of  said  railroad  which  they  had  bought  or  contracted  fov  and 
brought  to  Venezuela  with  which  to  build  the  road.  In  consideration 
thereof,  Rojas  and  Marcano,  acting  for  the  Eastern  Railroad  Company, 
issued  to  Flanagan,  Bradley,  Clark  &  Co.  the  90  bonds  of  |1,000  each, 
payable  to  bearer,  and  as  security  for  the  same  executed  a  mortgage 
on"the  property  thus  sold,  and  also  on  all  other  property  of  the  rail- 
road company.  Of  the  90  bonds  thus  issued  onl}^  46  were  actually 
delivered  to  "Flanagan,  Bradley,  Clark  &  Co.,  and  these  46  bonds 
undoubtedly  represent  the  estimated  value  of  the  property  owned 
by  that  fii-m  and  sold  in  the  manner  indicated  to  the  railroad  company. 
Besides  the  660  tons  of  iron  rails,  for  which  they  owed  Congreve  & 
Son,  and  on  account  of  which  debt  35  of  the  bonds  were  retained  by 
the  company,  the  property  delivered  by  said  firm  to  the  company  con- 
sisted of  a  locomotive  weighing  18  tons,  a  first-class  passenger  car, 
a  second-class  passenger  car,  six  box  cars,  four  platform  cars,  and  a 
hand  car. 

This  was  in  1860.  Three  years  later  the  railroad  company  trans- 
ferred to  the  Government  all  the  property,  rights,  privileges,  and 
franchises  of  the  company.  And  on  April  20,  1864,  the  Government, 
as  "sole  owner  of  the  enterprise  of  the  Railroad  of  the  East,"  trans- 
ferred to  Arthur  Clarke  all  appertaining  to  the  road,  and  in  considera- 
tion thereof  Clarke  agreed  to  deliver  to  the  ministry  of  the  treasury 
of  Venezuela  within  six  months  eighty  thousand  and  odd  dollars  of  the 
legitimate  debt  of  the  Government. 

It  is  a  fact  not  without  significance  that  the  amount  of  "  legitimate 
debt  of  Venezuela,"  agreed  to  be  paid  to  the  Govermnent  by  Clarke, 
corresponds  with  the  estimated  valuation  of  the  railway  material  rep- 
resented by  the  outstanding  bonds,  deducting  the  nine  bonds  which 
appear  to  have  been  retained  by  Rojas  and  Marcano  out  of  the  90 
issued.  It  would  seem  not  an  unfair  inference  that  Venezuela  recog- 
nized an  obligation  as  to  the  bonds  or  as  to  the  material  which  the 
bonds  represented,  and  that  the  conveyance  to  Clarke  was  subject  to 
his  obtaining  the  outstanding  bonds  and  delivering  them  to  the  Ven- 
ezuelan treasury.  Clarke,  indeed,  made  an  ofi'er  of  i;3,500  for  the 
bonds  through  the  Venezuelan  consul  in  London  on  September  16, 
1864,  to  John  Bradley.  The  consul,  Mr.  Hemming,  says:  "To  enable 
him  to  do  this  (i.  e.,  carry  on  the  Eastern  Railway),  the  Government 


REPOKT  OF  ROBERT  C.  MORRIS.  317 

has  to  take  up  the  bonds  held  by  3-011,  and  to  facilitate  matters  so  that 
they  may  at  once  begin  the  work  Mr.  Clarke  authorized  me  to  offer 
you  £3,500  sterling  for  all  the  bonds  in  question. "  But  Clarke  failed  to 
comply  with  his  contract  with  Venezuela,  and  it  appears  to  have  been 
afterwards  annulled  and  the  property  reverted  to  the  Government. 

The  Government  paid  Congreve  &  Son  for  the  rails  the  sum  of 
19,26-1:. 39  pesos,  and  the  company  on  December  19,  1863,  turned  over 
the  35  bonds  retained  on  that  account  to  the  Government.  Liability 
for  the  other  property  delivered  by  Flanagan,  Bradley,  Clark  &  Co.", 
and  represented  by  the  46  bonds  outstanding,  rested  upon  the  same 
basis,  namely,  that  Venezuela  received  the  property,  but  no  arrange- 
ment as  to  this  property  was  made  with  the  holders"  of  the  bonds  and, 
as  shown,  the  contract  with  Clarke  was  abrogated. 

It  is  true  the  bonds  were  secured  by  the  mortgage  given  by  the  rail- 
road company,  but  the  bonds  are  the  real  indicia  of  the  indebtedness. 
The  (lovernment,  after  December  19,  1863,  held  the  mortgaged  prop- 
erty and  the  claimant  elected  to  rely  upon  the  responsibility  of  the 
Government  instead  of  on  the  security.  This  he  had  a  perfect  right 
to  do. 

I  am  of  opinion  that  an  award  should  be  made  in  this  claim  in  accord- 
ance with  the  foregoing  views.  As  to  interest,  the  legal  rate  only 
should  be  allowed  after  the  bonds  had  matured. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf] 

of  Heniy  Woodruff,  claimant,  I  ^     ^^ 

The  Republic  of  Venezuela.  J 


Doctor  Paul,  Covimissioner: 

Henry  Woodruff  claims  from  the  Government  of  Venezuela  the  pay- 
ment of  the  value  of  46  bonds,  representing  the  sum  of  $46,000,  issued 
by  a  corporation  called  "Railway  of  the  p]ast,"  which  originated  from 
a  concession  granted  by  the  Government  of  Venezuela  on  January  10, 
1859,  in  favor  of  Messrs.  Juan  Marcano,  Jose  Maria  Rojas,  and  Flan- 
agan &  Clark,  and  also  claims  the  interest  on  said  bonds,  at  9  per  cent 
per  annum,  from  July  24,  1860,  amounting  to  $176,182.42,  making  a 
total  sum  of  $222,182.42. 

The  same  claim  for  the  amount  represented  by  the  bonds  and  interest- 
thereon  was  presented  by  Woodruff",  consecutivel}',  to  the  two  mixed 
commissions  created  by  the  conventions  agreed  upon  ))etween  Vene- 
zuela and  the  United  States  of  America  on  Api'il  2.5, 1866,  and  Decem- 
ber 5,  1885.  Both  commissions  dismissed  Mr.  Woodruff's  claim  foi- 
lacking  sufficient  proofs  in  which  the  responsibility  of  the  Govei-iuncnt 
of  Venezuela  could  ])c  found,  ])ut  without  prejudice  for  the  claimant 
to  prosecute  other  action  in  protection  of  his  rights.  This  decision,  in 
neither  of  the  two  cases,  recognized  foi-  its  cause  the  lacking  of  juiis- 
diction  of  l)oth  connnissions  to  examine  and  decide  upon  the  claim 
presented,  although  Mr.  Findlay,  commissioner  on  the  ])art  of  tli(^ 
United  States,  was  oF  the  opinion  that  the  commission  of  iSSt)  was 
lacking  in  jurisdiction  in  this  case  for  reasons  mentioned  in  his  opinion 


318  REPORT  OF  ROBERT  C.  MORRIS. 

in  wliieli  ho  decided  that  the  claim  should  be  disallowed.     He  states 
ill  his  separate  decision  the  merits  of  the  case,  as  follows: 

As  far  as  those  claims  (Henry  Woodruff  and  Flanagan,  Bradley,  Clark  &  Co., 
Nos.  20  and  25)  are  based  upon  a  breach  of  contract,  or  upon  bonds  issued  in  fur- 
therance of  the  enterprise,  we  are  of  opinion  that  the  claimants,  by  their  own  vol- 
mitary  waiver,  have  disabled  themselves  from  invoking  the  jurisdiction  of  this  com- 
mission, and  for  that  reason,  as  well  as  that  the  cause  of  action  has  been  misconceived 
and  proofs  therefor  not  sui)plied  that  otherwise  might  have  been  forthcoming,  we  will 
disallow  the  claims  and  dismiss  the  petitions  without  prejudice. 

Consequently,  by  a  vote  of  the  majority  of  the  members  of  the  com- 
mission of  1890,  charged  with  the  revision  of  tlie  awards  of  the  mixed 
commission  of  1867,  that  dismissed  the  claims  of  Woodruff  &  Flan- 
agan, Bradley,  Clark  &  Co.,  both  claims  were  dismissed  anew. 

The  protocol  signed  at  Washington  the  17th  day  of  February  of  this 
year,  which  created  the  present  Commission,  establishes  in  the  lirst 
article  its  jurisdiction,  limiting  the  same  to  the  claims  owned  by  citi- 
zens of  the  United  States  of  America  against  the  Republic  of  Venezuela 
that  have  not  been  settled  by  diplomatic  arrangement  or  by  arbitration 
between  the  two  Governments  and  that  are  presented  through  the 
Department  of  State  or  through  the  United  States  legation  at  Caracas. 
Two  requisites  are  thus  necessary  for  this  Commission  to  examine  and 
decide  on  a  claim  owned  by  an  American  citizen:  First,  that  it  had  not 
been  settled  by  diplomatic  arrangement  or  by  arbitration  between  the 
two  Governments,  and,  second,  that  it  be  presented  through  the 
Department  of  State  of  the  United  States  or  through  its  legation  at 
Caracas. 

What  is  understood  by  a  claim  having  been  settled  or  not  by  arbi- 
tration between  the  two  Governments?  In  my  opinion  a  claim  that 
has  been  the  object  of  an  arbitration  between  the  two  Governments  and 
which  has  been  disallowed  by  a  judgment  of  the  arbitral  commission 
charged  with  its  examination,  not  having  found  merits  enough  on 
which  an  award  against  the  Government  of  Venezuela  could  be  founded, 
has  been  settled.  In  no  other  way  could  the  object  of  these  inter- 
national commissions  be  considered  as  reached,  and  which  object  is  to 
decide  in  a  definite  manner  the  disputes  arising  between  the  citizens  of 
one  of  the  two  countries  against  the  other,  causing  trouble  and  com- 
plaints in  the  political  relations  of  both  countries.  For  these  reasons 
treaties  and  conventions  are  made  and  signed,  giving  exceptional 
faculties  to  mixed  courts  composed  of  judges  appointed  by  the  high 
contracting  parties,  and  in  such  virtue  the  convention  made  between 
Venezuela  and  the  United  States  on  the  25th  of  April,  1866,  distinctly 
.contains  in  its  article  5  the  following  stipulation: 

The  decisions  of  this  commission  and  those  ( in  case  there  may  be  any )  of  the  umpire, 
shall  be  final  and  conclusive  as  to  all  pending  claims  of  the  date  of  their  installation. 
Claims  which  shall  not  be  presented  within  the  twelve  months  herein  prescribed  will 
be  disregarded  by  both  Governments  and  considered  invalid. 

And  by  article  11  of  the  convention  between  the  same  Governments, 
of  December  5,  1885,  which  had  for  its  object  the  revision  of  the 
awards  of  the  previous  commission,  and  to  examine  and  decide  on  all 
claims  owned  by  corporations,  companies,  or  individuals,  citizens  of 
the  United  States,  against  the  Government  of  Venezuela,  which  may 
have  been  presented  to  their  Government  or  legation  in  Caracas  before 
the  1st  of  August,  1868,  it  was  agreed  "that  the  decisions  of  the  com- 
mission organized  under  this  present  convention  shall  be  final  and  con- 


REPORT  OF  ROBERT  C.  MORRIS.  319 

elusive  as  to  all  claims  presented  or  proper  to  be  presented  to  the 
former  mixed  commission." 

The  explanation  g-_iven  by  the  commission  of  1890,  in  the  dismissal 
of  the  Woodruff  claim,  thai  it  was  so  dismissed  without  prejudice  of 
other  actions  of  the  claimant,  does  not  mean  that  it  was  left  pending 
between  the  two  Governments.  If  this  meaning  should  be  given  to  the 
mentioned  decision  it  would  be  contrary  to  the  intended  object  of  the 
Mixed  Commission,  which  special  object  was  to  linall}'  settle  all  the 
pending  claims  of  corporations,  companies,  or  individuals,  citizens  of 
the  United  States,  against  the  Government  of  Venezuela. 

As  it  has  already'  been  said,  the  Woodruff*  claim  was  not  the  object 
of  a  declaration  of  lack  of  jurisdiction  by  any  of  the  two  commissions, 
but  of  lack  of  any  foundation  that  couldjustify  it;  and  to  pretend  now 
that  the  present  Commission  should  examine  anew  the  same  claim,  for 
demand  of  payment  from  the  Venezuelan  GoAcrnment  of  the  nominal 
value  of  the  same  bonds  issued  by  the  "Eastern  Railway  Company" 
and  the  interest  thereon,  changing  only  the  reasons  or  motives  in 
which  the  claimant  pretends  to  base  the  responsibilit}^  of  the  Govern- 
ment of  Venezuela,  trying  to  make  that  responsibility  arise  from  facts 
and  circumstances  tbat  were  known  to  the  claimant  at  the  time  he  pre- 
sented it  to  the  two  previous  mixed  commissions,  it  would  be  to  consent 
in  the  indefinite  duration  of  the  claim,  as  there  would  not  be  one 
claimant  that,  having  had  his  claim  disallowed,  could  not  present  it 
anew,  making  new  arguments  on  facts  not  mentioned  in  the  previous 
trials.  Such  action  would  completely  destroy  the  high  mission  of  the 
arbitration  courts,  especially  in  the  international  disputes  that  from 
their  nature  require  the  greatest  efficiency  in  the  stability  of  the  judg- 
ments and  their  definite  settlement. 

The  Commissioner  for  Venezuela  does  not  consider  as  indispensable, 
after  what  has  been  said,  to  make  a  study  of  the  new  foundation  on 
which  Mr.  Woodruff  bases  the  same  claim  presented  for  the  first  time 
against  the  Government  of  Venezuela  to  the  commission  of  1867— 
thirty-six  j^ears  ago.  The  appreciation  of  the  merits  of  the  new  argu- 
ments has  been  already  made  with  the  high  spirit  of  ecjuity  and  with  a 
learned  criticism  by  the  honorable  Mr.  Findlay,  commissioner  for  the 
United  States  in  1890,  in  his  opinion  on  this  case.  1  have  only  to  add 
that  the  claimant  has  not  presented  the  proof  of  any  new  fact  that 
could  in  any  wa}^  change  the  estimation  made  by  the  commission  of 
1890,  and  which  caused  the  dismissal  of  the  claim;  on  the  contrary, 
this  Commission  has  had  occasion  to  examine  the  documents  existing 
at  the  department  of  fomento  in  which  is  found  the  decision  of  the 
meeting  of  the  shareholders  of  the  Eastern  Railway  Company,  dated 
at  Caracas,  on  December  19,  1863,  and  })v  which  said  railway  was  sur- 
rendered to  the  Venezuelan  Government,  and  I  have  not  found  in  that 
decision  any  data  showing  that  said  Government  did  directly  acce[)t  the 
responsibilit}'  for  the  payment  of  the  bonds  issued  ])V  said  corjHiration 
in  favor  of  the  first  contractors  of  the  works,  that  were  also  the 
grantees  of  the  same  and  su})scrilKM's  for  the  largei-  part  of  the  shares. 
1  have  also  perused  the  communication  addressed  on  Septemlx-r  14, 
1865,  by  said  Henry  Woodruff  to  the  secretary  of  foreign  affairs,  in 
which  he  says: 

I  have  l)een  informed  by  the  Government  that  my  rights  on  the  lanrlf,  iron  rails, 
fixed  effects,  and  road  materials  was  perfect  and  indisputable,  and  it  is  so  by  the 
mortgage  of  security.     The  conditions  of  the  mortgage  not  having  been  complied 


.320  REPORT  OF  ROBERT  C.  MORRIS. 

with,  I  liavo,  consequently,  perfect  right  to  the  ownership  of  the  property.  Will 
the  (-iovernnient  now  consent,  so  that  all  things  included  in  the  mortgage,  after 
due  notice,  be  sold  at  ])Ml)lii'  auction  to  the  best  bidder  and  the  proceeds  apjilied  to 
the  payment  of  tlie  bonds?  I  only  ask  for  the  consent  to  exercise  a  right  that  has 
not  only  been  acknowledged  l\v  tlie  (Jovernnient,  but  insisted  on  its  exercise  when 
they  acted  against  third  i)arty.  When  the  interested  parties  are  i)erfectly  in  accord 
in  the  acknowledgment  of  the  rights,  it  would  not  only  be  insane  Init  an  offense  to 
incur  in  the  necessary  delay  and  expenses  for  the  judicial  foreclosure  of  a  mortgage. 

Mr.  Woodrujff  well  knew  in  1865  his  right  on  the  mortgage  that 
secured  the  payment  of  the  bonds,  and  he  made  no  use  of  that  right 
in  the  subsequent  years,  though  the  Government  of  Venezuela  pre- 
seiitod  no  dilHculty  for  the  enforcing  of  such  i-ight  through  the  courts. 
He  abandoned  the  property  that  was  given  him  as  security,  and,  know- 
ing all  the  particulars  in  reference  to  the  l)onds,  he  presented  his  claim 
to  the  commission  of  1867,  pretending  to  base  the  responsibility  of 
the  Government  of  Venezuela  on  a  breach  of  contract,  and  alleged  a 
lack  of  .documents  that  he  affirmed  were  in  the  possession  of  the  Gov- 
ernment of  Venezuela,  while  it  appears,  from  the  above-mentioned 
records,  that  on  October  8,  1864,  Mr.  Woodruff  asked  for  copies  of 
the  deed  by  which  Messrs.  J.  M.  Rojas  and  Juan  Marcano  made  a  ces- 
sion of  the  enterprise  to  the  Government  and  of  the  inventory  of  the 
railway  made  in  consetjuence  of  said  cession.  The  opinion  of  Mr. 
■Findlay  could  be  quoted  here: 

We  see  no  reason  why  immediate  and  effective  proceedings  might  not  have  been 
taken  to  foreclose  or  sell  the  road  under  the  mortgage,  which  contained  full  power 
of  sale. 

Instead  of  taking  this  advice  or  resorting  to  any  legal  step  to  enforce 
•his  claim  either  against  Clark  or  under  the  mortgage,  he  (Mr.  Wood- 
ruff) assumes  at  the  outset  the  position  that  Venezuela,  by  what  we 
may  call  the  Rojas-Marcano  retrocession,  had  obliterated  or  rather 
merged  the  corporation,  and  in  doing  so  had  assumed  the  liability  of 
paying  the  face  value  of  its  bonds  wuth  accrued  interest  to  date. 

Venezuela  had  nothing  more  than  an  equity  of  redemption,  and,  had  any  indi- 
vidual received  the  assignment,  it  would  never  have  been  contended  that  he  became 
personally  liable  for  the  debts  of  the  concern. 

*  *  *  *  *  *  * 

.  Venezuela  neither  issued  nor  indorsed  the  bonds  in  question.  They  were  issued 
by  the  parties  themselves,  and  unless  business  is  done  on  different  principles  in 
Venezuela  than  in  other  parts  of  the  world  we  must  believe  that  Flanagan,  Bradley, 
Clark  &  Co.,  by  virtue  of  the  potential  ownership  of  a  majority  of  the  stock,  and 
their  general  relation  to  the  enterprise  under  the  construction  contract,  must  have 
had  an  equal  voice  with  their  associates  in  the  issue  of  the  bonds.  When  they 
recpiVefl.them,  at  least,  there  could  have  been  no  pretense  that  Venezuela  was  respon- 
sible.' Keither  by  the  terms  of  the  concession  nor  by  any  contract  or  connection, 
direct' c5r -remote,  express  or  implied,  with  the  transaction,  has  she  assumed  any 
resjiohsibility.  *  *  *  Why  the  claimant  did  not  proceed  to  make  good  his  debt 
but  ofthe  mortgage  security  he  held  instead  of  pursuing  the  claim  against  the  Gov- 
ernment upon  the  theory  of  merger  is  altogether  unexplained  either  by  the  pajiers 
or  anything  that  was  said  at  the  arguments. 

Had  not  this  claim  been  alread}^  settled  by  arbitration,  this  court  of 
equity  could  also  consider  the  question  whether  the  bonds  represented 
a' iiominnl  value  equivalent  to 'the  real  amount  of  the  debt  which 
caiised  thetn 'to  be'jssued,  as  it  must  be  remembered  that  said  bonds 
were  issued  by  agreement  between  Flanagan,  Bradley,  Clark  &  Co., 
both, as;  origi-nal. grantees,  of  ■  the  enterprise  and  as  contractors,  that 
they  were"  to  receive  a  number  of  shares  that  represented  the  largest 
part  of  the  capital  of  the  company  in  payment  of  their  credit  as  con- 
structors; and  that  when  the  90  bonds  for  $1,000  each  were  issued 


REPORT  OF  ROBERT  C.  MORRIS.  321 

Messrs.  Rojas  and  Marcano  retained  35  of  them  that  represented  the 
credit  of  C.  Congrove  &  Co.,  of  New  York,  amounting-  to  §19, 204.39 
(Venezuelan  pesos),  owed  to  them  for  rails.  This  sum  represented 
one-half  of  the  nominal  value  of  the  bonds.  Neither  Flanagan,  Brad- 
ley, Clark  &  Co.  nor  Woodruff  presented  to  the  previous  commissions, 
nor  has  the  latter  presented  to  this,  an}"  proof  that  the  nominal  value 
of  the  bonds  corresponded  to  the  just  value  of  the  effects  and  materials 
for  which  payment  thej^  were  a  security.  All  these  considerations 
were,  doubtless,  the  reasons  why  the  commission  of  1890  considered 
in  justice  and  equit}^,  without  foundation,  the  pretension  to  make  the 
Government  of  Venezuela  responsible  for  the  value  of  the  bonds  in 
question,  and  for  the  interest  thereon,  and  caused  the  claim  of  Henry 
Woodruff  to  be  disallowed. 

For  the  above  reasons  it  is  my  opinion  that  said  claim  has  already 
been  the  object  of  a  judgment  of  the  mixed  commission  of  1890,  and 
was  dismissed  for  lack  of  foundation,  and  therefore  this  Commission 
should  entirely  disallow  it  for  want  of  jurisdiction  to  reconsider  a  case 
that  has  been  already  definitely  settled  b}'^  the  arbitral  commission  of 
1890. 

The   United   States  and  Venezuelan   Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United   States  or  America  on  behalf  1 

of  Henry  Woodruff',  claimant,  [     >^     qo 

The  Republic  of  Venezuela.  J 

The  Umpire: 

A  difference  of  opinion  having  arisen  between  the  Commissioners 
of  the  United  States  of  America  and  the  United  States  of  Venezuela, 
this  case  was  dul}^  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol  and 
also  the  documents,  evidence,  and  arguments,  and  like\yise  all  the  com- 
munications made  by  the  two  parties,  and  having  impartially  and 
carefully  examined  the  same,  has  arrived  at  the  following-  decision: 

Whereas  in  this  case  the  United  States  of  America  presents  the 
claim  of  Henry  Woodruff,  to  recover  the  face  value  of  46  bonds  of 
$1,000  United  States  currency  each,  together  in  the  sum  of  $46,000, 
with  interest  at  9  per  cent  per  annum  from  July  24,  1860;  and 

Whereas  these  46  bonds  form  part  of  the  90  bonds  of  $1,000  United 
States  currency  which  Jose  M.  Rojas  and  Juan  Marcano,  as  president 
and  treasurer  of  what  they  called  the  "Eastern  Railroad  (V)nipany," 
issued  by  orcLer  of  Flanagan,  Bradley,  Clark  &  Co.,  and  which  bonds 
were  secured  by  a  first  mortgage  on  the  said  Eastern  Railroad,  and 
all  the  buildings,  cft'ects,  and  lands,  which  may  now  or  hereaftei- 
belong  to  said  company  as  per  grant  of  the  Government  of  Venezuela, 
bearing  date  of  Januar}'  8,  1859;  and 

Whereas  tins  grant  svas  made  by  the  same  contract  by  which  the 
Government  of  Venezuela  did  grant  to  said  Juan  Marcano  and  others  a 
charter  for  the  construction  of  a  railroad  from  the  city  of  Caracas  to 
Petare,  with  the  privilege  of  extending  the  same,  and  authorizing  the 

S.  Doc.  317,  58-2 21 


322  REPORT  OF  ROBERT  C.  MORRIS. 

organization  of  a  company  or  corporation  for  the  purpose  of  building 
ana  equippino-  the  same;  and 

AVhereas,  on  the  l!Hh  of  December,  1863,  said  Jose  M,  Rojas 
and  Juan  Mercano  made  a  cession  of  all  the  rights  of  the  railroad 
company  to  the  (Jovennnent  of  Venezuela,  which  the  Government 
transferred  the  same  to  one  Arthur  CMai'ke  by  contract  of  the  20th  of 
April,  i8()4:,  this  contract  being  anmdled  later  on,  and  the  right  of  the 
railroad  company  retiu-ning  thereby  to  the  CTOVcrnment. 

Whereas,  therefore,  the  question  of  the  liability  for  the  bonds  issued 
through  the  so-called  " Eastern  Railroad  Company"  and  secured  by 
mortgage  on  all  the  belongings  of  said  company,  involving  the  ques- 
tions on  the  rights  and  duties  of  this  company,  and  the  scope  of  the 
transfer  of  these  rights  and  duties  from  the  company  to  the  Govern- 
ment, from  the  Government  to  Arthur  Clarke,  and  from  Arthur 
Clarke  l)ack  to  the  Government,  centers  in  the  question  about  the 
original  rights  and  duties  of  said  compan}-  arising  from  the  contract 
by  which  the  concession  for  the  railroad  and  the  permission  for  the 
organization  of  the  compan}'  was  granted,  this  contract  has  in  the  first 
place  to  be  contemplated. 

Now,  whereas  article  20  of  this  contract  reads  as  follows: 

Doubts  and  controversies  which  at  any  time  might  occur  in  virtue  of  the  present 
agreement  shall  be  decided  by  the  common  laws  and  ordiftary  tribunals  of  Ven- 
ezuela, and  they  shall  never  be,  as  well  as  neither  the  decision  which  shall  be 
pronounced  upon  them,  nor  anything  relating  to  the  agreement,  the  subject  of  inter- 
national reclamation. 

And  whereas  this  claim  to  recover  from  the  Venezuelan  Government 
the  face  value  of  the  bonds  issued  through  the  president  and  treas- 
urer of  the  Eastern  Railroad  Company  based  on  the  h3'po thesis  of  a 
transferring  of  the  rights  and  duties  of  that  company  to  the  Govern- 
ment of  Venezuela,  doubts  and  controversies  on  the  lial)ility  of  the 
Venezuelan  Government  in  this  question,  must  be  regarded  as  doubts 
and  controversies  which  occur  in  virtue  of  said  agreement,  and  cer- 
tainly are  "  relating  to  that  agreement." 

Wherefore  they  must  be  considered  as  being  meant  b}^  the  contract- 
ing parties  never  to  be  transferred  for  adjudication  to  any  tribunal 
but  to  the  ordinary  tribunals  of  Venezuela  and  to  be  there  determined 
in  the  ordinary  course  of  the  law;  and 

Whereas  bondholders — at  all  events  the  original  bondholders — from 
whom  the  later  owners  and  possessors  derive  their  rights,  before 
accepting  these  bonds  knew,  certainly  ought  to  know,  and  must  be 
supposed  to  know  on  which  foundation  stand  the  power  and  the  solid- 
ity to  which  they  give  credit  by  accepting  these  bonds; 

Whereas  at  all  events  those  who  accept  bonds  of  a  company  or  cor- 
poration know — certainly  must  be  supposed  to  know — the  statutes 
and  conditions  from  which  this  company  or  corporation  derives  its 
powers  and  rights,  and — as  to  these  bonds — to  have  adhered  to  them 
in  regard  to  the  bondholders  as  well  as  in  regard  to  the  company  or 
corporation  the  articles  of  the  fundamental  agreement  have  to  be 
applied. 

Furthermore,  whereas  certainly  a  contract  between  a  sovereign  and 
a  citizen  of  a  foreign  country  can  never  impede  the  right  of  the  gov- 
ernment of  that  citizen  to  make  international  reclamation,  wherever 
according  to  international  law  it  has  the  right  or  even  the  duty  to  do 


REPORT  OF  ROBERT  C.  MORRIS.  323 

SO,  as  its  rig-hts  and  obligations  can  not  be  effected  hy  any  precedent 
agreement  to  which  it  is  not  a  part}  ; 

But  whereas  this  does  not  interfere  with  the  right  of  a  citizen  to 
pledge  to  any  other  party,  that  he,  the  contractor,  in  disputes  upon 
certain  matters  will  never  appeal  to  other  judges  than  to  those  desig- 
nated by  the  agreement,  nor  with  his  obligation  to  keep  this  promise 
when  pledged,  leaving  untouched  the  rights  of  his  government  to 
make  his  case  an  object  of  international  claim  whenever  it  thinks 
proper  to  do  so,  and  not  impeaching  his  own  right  to  look  to  his  gov- 
ernment for  protection  of  his  rights  in  case  of  denial  or  unjust  delay 
of  justice  bj"  the  contractively  designated  judges; 

AVhereas_  therefore  the  application  of  the  lirst  part  of  article  20  of 
the  aforesaid  agreement  is  not  in  conflict  with  the  principles  of  inter- 
national law,  nor  with  the  inalienable  right  of  the  citizen  to  appeal  to 
his  government  for  the  protection  of  his  right  whenever  it  is  in  any 
way  denied  to  him,  equity  makes  it  a  duty  to  consider  that  part  of 
article  20  just  as  well  as  all  other  not  unlawful  agreements  and  conditions 
of  said  contract,  wherever  that  contract  is  called  upon  as  a  source  of 
those  rights  and  duties  whereon  a  claim  may  be  based. 

Now,  whereas  it  might  be  said,  as  it  was  said  before,  that  by  the  terms 
of  the  protocol  the  other  party,  viz,  the  Government  of  Venezuela, 
had  waived  her  right  to  have  questions  arising  under  the  agreement 
determined  l)y  her  own  courts,  and  had  submitted  herself  to  this  tribu- 
nal, it  is  to  be  considered  that  even  in  the  case  of  this  claim  as  a  claim 
against  the  Venezuelan  Government  owned  b}^  an  American  citizen, 
being  a  claim  that  is  entitled  to  be  brought  before  this  Commission, 
the  judge,  having-  to  deal  with  a  claim  fundamentally  based  on  a  con- 
tract, has  to  consider  the  rights  and  duties  arising  from  that  contract, 
and  ma}^  not  construe  a  contract  that  the  parties  themselves  did  not 
make,  and  he  would  be  doing  so  if  he  gave  a  decision  in  this  case  and 
thus  absolved  from  the  pledged  duty  of  first  recurring  for  rights  to 
the  Venezuelan  courts,  thus  giving  a  right,  which  by  this  same  con- 
tract was  renounced,  and  a])solve  claimant  from  a  duty  that  he  took 
upon  himself  by  his  own  voluntary  action;  that  he  has  to  consider  that 
claimant  knew,  at  all  events  ought  to  have  known  when  he  bought  the 
bonds,  or  received  them  in  payment,  or  accepted  them  on  whatsoever 
ground,  that  all  questions  about  liability  for  the  bonds  had  to  be 
decided  b}'  the  common  law  and  ordinary  tril)unals  of  Venezuela,  and 
by  accepting  them  agreed  to  this  condition;  and 

Whereas  it  does  not  appear  tiiat  any  appeal  of  that  kind  was  ever 
made  to  the  Venezuelan  courts,  it  must  ))e  concluded  that  claimant 
failed  as  to  one  of  the  conditions  that  would  hnve  entitled  him  (o  look 
on  his  claim  ai>  on  one  on  which  a  decisive  judgment  might  be  given 
by  this  Commission;  and 

AMiereas,  therefore,  in  the  consideration  of  the  claim  itself  it 
appears  out  of  the  evidence  itself,  laid  before  the  Connnission,  that 
claimant  renounced— at  all  events  adhered  to  the  reiuuiciation  of  the 
right  to  have  a  decision  on  the  claim  by  any  other  authority  than  the 
Venezuelan  judges,  and  pledged  himself  not  to  go — at  all  events 
adhered  to  the  promise  of  not  going  to  other  judges  (except  natui'ally 
in  case  of  denial  or  unjust  dehiy  of  justice,  which  was  not  only  not 
proven  })ut  not  even  alleged),  and  that  by  the  very  agreement  that  is 
the  fundamental  basis  of  the  claim  it  was  withdrawn  from  the  juris- 
diction of  this  Commission. 


824  REPORT  OK  ROBERT  C.   MORRIS. 

AMioroforo,  iis  the  clainuuit  ])y  his  own  voluntaiy  waiver  has  dis- 
abled himself  from  invokinj,^  tiie  jurisdiction  of  this  Commission,  the 
claim  has  to  l)e  dismissed  witliout  prejudice  on  its  merits  when  pre- 
sented to  the  proper  judoes. 

The   United    States  and  Venezuelan   Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

DECISION. 


The  United   States   of  xVmerica  on  behalf 
of  Henry  Woodruff,  claimant, 

V. 

The  Republic  of  Venezuela. 


rNo.  22. 


The  above-entitied  claim  is  hereby  dismissed  without  prejudice  on 
its  merits. 

Harry  Barge,  Umpire. 
Attest: 

J.  Padeon  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolc^e, 

Seci'etary  on  thejpart  of  the  United  States  of  America. 
Delivered  October  2,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 
of  William  V.  Spader  et  al.,  heirs  and  legatees  | 
of  Admiral  Louis  Brion,  deceased,  claimants,  }-No.  23. 

V. 

The  Republic  of  Venezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimants,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  filed  by  the 
agent  of  Venezuela  in  answer. 


Mary  E.  Spader  and  heirs  of  Admiral  Louis  Brion 

V.  VNo.  23. 

Venezuela. 

ANSWER. 

Tlonorahle  memhers  of  the  Venezuela7i-America7i  Mixed  Corn  mission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  Mary  E.  Spader  and  other  heirs  of  Admiral 
Louis  Brion,  and  respectfully  shows  to  the  tribunal: 


REPORT  OF  ROBERT  C.  MORRIS.  3^5 

The  right  which  the  heirs  of  Admiral  Brion  might  have  had  to  ehiim 
from  Venezuela  the  portion  of  the  debts  of  the  old  Repnblic  of  Colom- 
bia which  it  should  have  paid,  according-  to  the  stipulation  in  the  con- 
vention of  Bogota  of  1834,  has  been  barred.  When  the  comiuission 
of  1867-68  was  sitting-  this  claim  was  not  presented,  and,  in  accordance 
with  the  convention  which  created  that  commission,  ought  to  be  con- 
sidered null  and  void  by  both  Governments. 

The  commission  of  1800,  to  which  this  claim  was  presented,  disallowed 
it,  basing  its  decision  on  th^  ground  above  stated.  The  matter  is, 
therefore,  res  judicata. 

The  undersigned  deems  it  useless  to  repeat  in  the  present  case  the 
argument  set  forth  in  the  claim  of  Woodrufl',  which  has  been  made 
under  similar  circumstances  to  the  present,  and,  referring  to  it,  asks 
that  this  claim  be  declared  inadmissible. 

Caracas,  July  13,  1903. 

F.  Arroyo  Parejo. 

The   United    States  and  Venezuelan   Claims  Commission,   sitting   at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  of] 
William  V.  Spader  etal.,  heirs  and  legatees  of  | 
Admiral  Louis  Brion,  deceased,  claimants,  r  No.  23. 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  l)y  Bainbridge,  Commissioner. 
Claim  disallowed. 

The   United    States  and   Venezuelan   Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  of 
William  V.  Spader  et  al.,  heirs  and  legatees  of 
Admiral  Louis  Brion,  deceased,  claimants,  }-No.  23. 

V. 

The  Republic  of  Venezuela. 

Bainbridge,  CommiaHlone?': 

William  V.  Spader,  claimant  herein,  states  that  he  is  a  citizen  of  the 
United  States  of*  America,  and  that  he  is  the  only  child  and  sole  heir 
at  law  of  Mary  Elizabeth  Franken  Si)a(ler,  deceased,  who  was  the  solo 
legatee  under  the  last  will  and  t(\stament  of  Mai-ia  .losepha  Brion 
Franken,  who  was  one  of  the  legaUics  and  beneficiaries  utider  the  last 
will  and  testament  of  Louis  Brion,  usually  known  as  Admiral  Louis 
Brion,  who  died  on  the  21st  day  of  September,  1821. 

The  memorial  sets  foi-th  certain  claims  against  the  Repul)lic  of  Ven- 
ezuela in  favor  of  Admiral  I^ouis  lirion  for  services  rendered  by  the 
latter  in  the  cause  of  Venezuelan  ind(!pendence.  Admiral  Brion  left 
his  estate  to  his  brother,  who  died  shortly  afterwards  intestate  and 
unmarried,  and  to  his  three  sisters,  Maria  Joscpha,  (Charlotte,  and 
Helena.     Maria    .losepha    Brion    married    Morents    F.    Franken    in 


326  REFORT  OB^  ROBERT  O.  MORRIS. 

Curavao,  tiiul  after  her  luisl)aiKrs  death  removed  to  the  United  States, 
wliere  she  died  m  1850,  l)equeathin^-  all  her  estate  to  her  daughter 
Mary  Elizabeth  Fraidcen,  who  married  Krosoti  T.  B.  Spader.  Mary 
E.  Spader  was  naturalized  as  a  citizen  of  the  United  States  April  29, 
1865.  Charlotte  Hrion  married  Joseph  Foulke,  a  merchant  of  New 
York.     She  died  in  18-10. 

William  V.  Spader  claims  that  he  and  the  other  proper  parties, 
heirs  of  Admiral  Brion  and  citizens  of  the  United  States,  are  entitled 
to  be  paid  bv  and  to  receive  from  the  llepu])lic  of  Venezuela  the  two- 
thirds  part  "of  the  indebtedness  of  the  Kepublic  of  Venezuela  to  the 
estate  of  Admiral  Brion. 

It  appears  from  the  record  that  this  claim  orignated  between  the 
years  1810  and  1821.  Citizens  of  the  United  States  had,  or  appear  to 
have  had,  interest  in  the  claim  prior  to  1816.  It  was  first  brought  to 
the  attention  of  the  United  States  Government,  so  far  as  the  evidence 
shows,  on  November  1,  1889.  No  reason  or  explanation  is  given  for 
delay  in  presentation.  It  was  submitted  to  the  commission  created  by 
the  convention  of  December  5,  1885,  between  the  United  States  and 
Venezuela.  The  commission  dismissed  it,  without  prejudice,  for  want 
of  jurisdiction.  It  does  not  appear  in  evidence  when  or  in  what 
manner  the  claim  was  ever  otherwise  l)rought  to  the  attentiou  of  the 
Government  of  Venezuela. 

A  right  unasserted  for  over  forty-three  years  can  hardly  in  justice 
be  called  a  "claim." 

Prescription  [says  Vattel]  is  the  exclusion  of  all  pretensions  to  right— an  exclu- 
sion founded  on  tli'e  length  of  time  during  which  that  right  has  been  neglected. 

All  sorts  of  prescription  by  which  rights  are  acquired  or  lost  are  grounded  upon 
this  presumtion,  that  he  who  enjovs  a  right  is  supposed  to  have  some  just  title  to  it, 
without  which  he  had  not  been  suffered  to  enjoy  it  so  long;  that  he  who  ceases  to 
exercise  a  right  has  been  divested  of  it  for  some  just  cause;  and  that  he  who  has 
tarried  so  long  a  time  without  demanding  his  debt,  has  either  received  payment  of  it, 
or  been  convinced  that  nothing  was  due  him.     (Uomat.  Civil  and  Pubhc  Law,  483. ) 

The  same  presumption  may  be  almost  as  strongly  drawn  from  the  delay  '.n  mak- 
ing application  to  this  Department  for  redress.  Time,  said  a  great  modern  jurist, 
following  therein  a  still  greater  ancient  moralist,  while  he  carries  in  one  hand  a 
scythe  by  which  he  mows  down  vouchers  by  which  unjust  claims  can  be  dis  roved, 
carries  in  tlie  other  hand  an  hour  glass,  which  determines  the  period  after  which, 
for  the  sake  of  peace,  and  in  conformity  w'ith  sound  political  philosophy,  no  dainis 
whatever  are  permitted  to  be  pressed.  The  rule  is  sound  in  morals  as  well  as  in  law. 
(Mr.  Bayard,  Secretary  of  State,  to  Mr.  Muruaga,  Dec.  3,  1886;  Wharton  Dig.  Int. 
Law,  Appendix  vol.  3,  sec.  239.) 

While  international  proceedings  for  redress  are  not  bound  1)y  the  letter  of  specific 
statutes  of  limitations,  they  are  subject  to  the  same  presumptions,  as  to  payment  or 
abandonment,  as  those  on  which  statutes  of  limitations  are  based.  A  government 
can  not  any  more  rightfully  press  against  a  foreign  government  a  stale  claim  which 
the  party  holding  dec^lined  to  press  when  the  evidence  was  fresh  than  it  can  permit 
such  claims  to  be  the  subject  of  perpetual  litigation  among  its  own  citizens.  It  must 
be  remembered  that  statutes  of  limitations  are  simply  formal  expressions  of  a  great 
principle  of  peace  which  is  at  the  foundation  not  only  of  our  own  common  law,  but 
of  all  other  systems  of  civilized  jurisprudence.  (Wharton  Dig.  Int.  Law,  Appendix 
vol.  3,  sec.  239. ) 

It  is  doubtless  true  that  municipal  statutes  of  limitation  caii  not 
operate  to  bar  an  international  claim.  But  the  reason  which  lies  at 
the  foundation  of  such  statutes,  that  "great  principle  of  peace,"  is  as 
obligatory  in  the  administration  of  justice  by  an  international  tribunal 
as  the  statutes  are  binding  upon  municipal  courts. 

In  the  case  of  Loretta  G.  Barberie  v.  Venezuela,  decided  by  the 
United  States  and  Venezuelan  Commission  of  1889,  Mr.  Commissioner 
Findlay  said: 


EEPORT  OF  ROBERT  G.  MORRIS.  327 

A  stale  claim  does  not  become  any  the  less  so  because  it  happens  to  be  an  interna- 
tional one,  and  this  tribunal  in  dealing  with  it  can  not  escape  the  obligation  of  an 
universally  recognized  principle,  simply  because  there  happens  to  be  no  code  of 
positive  rules  by  which  its  action  is  to  be  governed. 

The  claim  is  disallowed. 

The   United   States  and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  | 
of  W  illiam  V.  Spader  et  el. ,  heirs  and  legatees  | 
of  Admiral  Louis  Brion,  deceased,  claimants,  j-  No.  23. 

V. 

The  Republic  of  Venezuela. 

The  above-entitled  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  the  part  of  the  ZJnJtrd  St((t<^'<  of  America. 

J.  DE  J.  Paul, 
Com.missioner  on  the  ■part  of  Venezuela. 
Attest  to  decision. 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  jMrt  of  Yenesuela. 

Rudolf  Dolge, 

Secretary  on  .the part  of  the  Uynted  States  of  America. 

Delivered  August  21,  1903. 


Before  the  Mixed  Commission  organized  under  the  portocol  of  Febru- 

aiy  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States   of  America  on   behalf 
of  Charles  AV.  Torre}',  claimant, 

V. 

The  Repuiujc  of  Venezuela. 


No.  24. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Charles  W. 
Torrey  for  damages  for  false  arrest,  imprisonment,  and  unlawful 
detention,  and  for  personal  indignities  in  connection  therewith. 

The  claimant  is  a  native-born  American  citizen.  His  complaint 
relates  to  his  arrest  at  La  Guaira  on  May  9,  187<). 

The  facts,  Avhich  are  amply  supported'  by  the  memorial  and  former 
protest  of  Mr.  Torrey  himself,  and  })y  the  protest  of  Messrs.  Nostrand 
and  Ikrtram,  are  })rieny  that  the  claimant,  having  been  for  a  few  days 
at  Caracas,  and  being  desirous  of  returning  to  New  York  and  stopping 
at  Curasao  on  the  way,  a])plicd  for  a  passport  to  Curayao,  ])ut  was 
informed  that  the  Venezuelan  dlovernment  would  not  issue  a  passport 
to  Curasao,  but  would  issue  him  a  p:issport  to  New  York,  which  was 
done.  Thereupon,  Mr.  Torrey  under! (H)k  to  take  passage  upon  an 
English  vessel  bound  for  Curac/ao,  intending  to  there  take  a  vesstil  for 
New  York,  it  being  at  that  time  the  shortest  way  to  reach  New  York,  to 


328  REPORT  OF    ROBERT  C.  MORRIS. 

u()  l)v  I  ho  way  of  C^iravao,  changing-  vessels  at  that  point.  While  on  the 
way'in  the  harbor  to  tlio  vessel,  a  boat  Avas  sent  after  them  ))y  the  Vene- 
zuehin  authorities,  under  express  instructions,  by  telegram,  of  the 
government  at  Caracas,  and  the  claimant  and  the  two  other  gentlemen 
al)ove  referred  to  were  arrested  and  brought  back  to  port,  and  con- 
tiued  in  jail  for  several  hours.  They  ortered  to  give  bonds,  and 
requested  to  l)e  allowed  to  go  to  their  hotel  under  guard,  but  this  was 
refused,  and  they  were  confined  in  a  common  jail  with  the  lowest 
criminals,  and  uiider  most  disgusting  surroundings.  Proper  repre- 
sentation to  tiie  govei-nment  at  Caracas  having  been  made  by  the 
Cnited  States  consul,  the  claimant  and  the  other  gentlemen  with  him 
were  released. 

These  facts,  as  appears  from  the  diplomatic  correspondence  between 
the  United  States  and  the  Government  of  Venezuela,  are  not  in  any 
way  disputed  by  the  Venezuelan  authorities. 

The  claim  is  for  damages  not  only  for  an  illegal  arrest,  but  for  the 
unnecessarily  harsh  and  arbitrary  treatment  to  which  the  claimant  was 
subjected  while  in  detention. 

There  can  ])e  no  question,  from  a  legal  standpoint,  of  the  liability  of 
the  Republic  of  Venezuela  to  respond  in  damages  to  the  facts  of  this 
case.  See  the  cases  of  this  character  which  have  arisen  before  similar 
commissions,  collated  ])y  Mr.  Moore  in  his  work  on  International 
Arbitration,  Volume  IV,  pages  3235,  et  seq. 

In  the  cases  there  collated,  there  was  universally  held  to  be  a  liabil- 
ity for  an  arrest  and  imprisonment  without  cause,  and  for  harsh  and 
arbitrary  treatment  during  the  imprisonment,  whether  the  arrest  was 
basied  upon  probable  cause  or  not. 

It  is  manifest,  in  the  first  place,  that  the  arrest  in  this  case  was 
wholly  unwarranted.  The  fact  that  claimant  had  obtained  a  passport 
for  New  York  and  then  took  a  vessel  for  Curacao  was  no  offense 
against  the  Government  of  Venezuela.  It  was  not  in  a  state  of  war 
with  the  Dutch  Government,  nor  were  there  any  circumstances  under 
wdiich  it  had  a  right  to  dictate  whether  citizens  of  the  United  States 
leaving  Venezuela  should  or  should  not  go  to  Curasao.  _  There  would 
have  been  nothing  illegal  or  criminal  in  Mr.  Torrey's  going  to  Curayao 
without  a  passport,  nor  in  his  changing  his  mind  and  concluding  to  go 
to  Curacao  after  getting  a  passport  to  New  York,  but  in  this  case  he 
intended  to  go  to  New  York  and  simply  chose  to  go  by  the  way  of 
Curayao.  The  whole  transaction  shows  a  most  arbitrary  and  uncalled- 
for  arrest  and  false  imprisonment. 

Moreover,  the  refusal  to  take  bond,  or  to  allow  the  claimant  to  stay 
at  his  hotel  under  guard  while  the  matter  was  being  investigated,  and 
the  vile  quarters  in  which  he  was  imprisoned,  were  all  indignities  to 
which  Mr.  Torre}^  was  unnecessarily  subjected. 

The  original  memorial  of  Mr.  Torrey,  presented  to  the  State  Depart- 
ment of  the  United  States,  asked  for  damages  in  the  sum  of  $50,000. 
By  a  supplemental  memorial,  under  date  of  May  9,  1903,  this  is 
reduced  by  Mr.  Torrey  to  $10,000. 

We  submit  that  this  is  a  moderate  and  reasonable  claim  for  the 
indignities  to  which  Mr.  Torrev  has  been  subjected  by  the  authorities 
of  the  Venezuelan  Government,  and  that  an  award  should  be  made  in 
that  amount. 

Respectfullv  submitted. 

Robert  C.  Morris, 
Agcvt  of  the  United  States. 


REPORT  OB'  ROBERT  C.  MORRIS.  329 

[Translation.] 

Charles  W.  Torre}^      Claim  No.  24. 

Honorahle  Memhers  of  the  Mixed  Venezuelan- Anieriean  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  the  American  citizen  Charles  W.  Tori-ey,  and 
respectfully  states  to  the  tribunal: 

In  May,  1876,  at  a  time  gf  disturbance  in  the  countr}',  since  it  was 
expected  that  Holland  would  communicate  an  ultimatum  through  the 
medium  of  its  squadron,  which  had  just  arrived  in  the  vicinity  of  the 
island  of  Curasao,  the  Government,  in  the  full  exercise  of  its  powers, 
ordered  certain  measures  to  be  complied  wuth  by  passengers  leaving 
for  foreign  parts.  Mr.  Torre}',  who  at  that  time  resided  in  Caracas, 
took  out  a  passport  to  depart  directl}^  to  the  United  States,  but 
arrived  at  La  Gua3'ra,  ignoring  the  legal  prohibition,  he  took  out, 
in  the  agency  of  the  vessel  in  which  he  was  going  to  leave,  passage  for 
Curasao.  The  police  authorities  being  advised  of  this,  prevented  the 
departure  of  Mr.  Torrey  and  put  him  under  arrest  until  light  could  be 
shed  upon  the  matter. 

Two  points  appear  clearly  proved  in  the  proceedings— the  police 
measure  ordered  by  the  Venezuelan  authorities  and  the  intention  to 
violate  it  on  the  part  of  the  claimant. 

With  regard  to  the  former,  the  undersigned  believes  that  the  right 
of  Venezuela  to  order  that  measure,  which  imposed  public  security  at 
that  time,  is  not  to  be  discussed;  with  regard  to  the  second,  even 
though  it  might  have  happened  that  the  claimant  was  ignorant  of  the 
existence  of  such  an  order,  his  ignorance  could  not  exciise  him,  under 
the  principle  of  law  which  states:  Ignorance  of  the  law  is  no  excuse  for 
its  fullillment.  At  all  events,  the  procedure  of  the  police  authorities 
was  correct. 

For  the  rest,  the  arrest  of  Mr.  Torrey  had  a  duration  of  only  a  few 
hours  and  the  Government  of  the  Republic,  in  consideration  of  the  nation 
to  which  he  belonged  and  informed  of  his  good  conduct  in  the  countiy, 
even  went  to  the  extent  of  detaining  the  vessel  in  which  he  should  have 
sailed,  in  order  that  he  should  not  lose  the  voyage. 

The  insults  and  damages  of  which  Mr.  Torrey  complains  an'  not 
proved  in  anv  manner. 

This  atlair  was  the  cause  of  lengthy  diplomatic  correspondence,  iit  the 
conclusion  of  which  the  (jovernment  of  the  United  States,  convuiced 
of  the  reason  which  supported  Venezuela,  considered  the  matter  closed 
and  declared  itself  satisiied,  refusing  the  intervention  asked  by  theclann- 
ant,  as  is  shown  by  the  letter  from  Mr.  Bayard,  set  forth  in  the  papers 

filed.  ,111 

The  claim,  lacking,  as  it  does,  all  roundalion  of  factor  law,  should 

be  rejected. 

Carayas,  July  i;^>,  liM)3. 

F.  AkKOYO    i*AIiK.I(). 


880  REPORT  OF  KOBERT  C.  MORRIS. 

The    ruitinl   Stiitos    and    Venezuelan  Claims    C'oinmis.sion,   sitting  at 

Caracas,  Venezuela. 

Thk  United  States  or  America  on  heiialf~ 

of  Charcls  W.  Torrey,  claimant,  I  ^^   ^4. 

■r. 
The  Republic  of  Venezuela, 

DECISION    AND    AWARD. 

Opinion  bv  Doctor  Taul,  Comniissioncr. 

The  Commission  awards  in  favor  of  the  claimant  the  sum  of  |250 
United  States  gold. 

The  United   States  and   Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  Charles  W.  Torrey,  claimant,  \^^   24 

V.  I        "       * 

The  Republic  of  Venezuela,  J 

Doctor  Paul,  CommtsaJojier. 

Charles  W.  Tor-rey  claims  from  the  Government  of  Venezuela  the 
sum  of  110,000  for  damages  caused  by  unjust  arrest  at  the  port  of  La 
Guayra,  on  May  3,  1876,  and  for  personal  illtreatment  in  connection 
therewith. 

The  memorialist  bases  his  pretention  on  the  following  facts: 
Early  in  the  year  1876  he  went  to  Curayao  for  health  and  pleasure. 
Shortly  after  his  arrival  there  he  concluded  to  go  to  Venezuela  to  see 
the  country  and  visit  its  capital,  Caracas.  After  remaining  in  Caracas 
for  about  a  week  he  concluded  to  return  to  Cura^-ao  by  the  English 
royal  mail  steamer  Severn.  On  the  9th  of  May,  1876,  after  having 
obtained  a  passport  with  all  the  necessary  vises  by  the  authorized 
officers  of  the  Venezuelan  Government  in  Caracas,  he  started  for  La 
Guayra,  wdiere  he  intended  taking  the  steamer  Severn  back  to  Curasao. 
With  him  at  the  same  time  were  a  Mr.  Bartram  and  Dr.  Elbert 
Nostrand,  also  citizens  of  the  United  States.  The  steamer  was  lying 
out  in  the  stream,  and  the  three  embarked  on  a  boat  belonging  to  said 
steamer  to  reach  it.  While  on  the  way  to  said  steamer  they  were 
hailed  from  shore  and  ordered  back  and  commanded  to  report  to  the 
civil  officer  in  charge  at  La  Guayra.  This  officer  ordered  them  all  to 
be  imprisoned  in  the  common  jail.  Torrey  claims  that  he  was  lodged 
in  a  cell  with  many  low  prisoners,  his  cell  containing  no  other  accom- 
modation or  furniture  than  a  common  table  and  a  set  of  wooden  stocks. 
His  request  to  remain  at  the  hotel  under  guard,  although  he  was 
suffering  from  an  attack  of  inflammatory  rheumatism,  was  arbitrarily 
refused,  and  he  was  taken  to  jail,  and*  kept  in  said  prison  for  four 
hours.  He  was  released  through  the  immediate  exertions  of  the  United 
States  consul  at  La  Guayra  and  the  United  States  representative  at 
Caracas,  and  he  took  the  "^steamer  bound  for  Curasao  the  same  evening 
at  7  o'clock. 

Among  the  documents  presented  there  is  a  copy  of  the  communica- 
tion addressed  on  the  12th  of  June,  1885,  by  the  honorable  Secretary 


REPOET  OF  ROBERT  0.  MORRIS.  331 

of  State,  T.  F.  Bayard,  to  Mr.  Torrey,  in  reference  to  his  claim,  which 
in  itself  is  ,  ufficient  to  lix  the  appreciation  that  this  Commission  must 
make  al)out  the  fact  of  the  unjust  arrest  suffered  by  Mr.  Torrey  for  a 
few  hours  in  the  port  of  La  Gua3"ra.  Said  communication  reproduces 
the  opinion  of  Mr.  Evarts,  Secretary  of  State,  contained  in  a  letter 
addressed  b}^  him  to  the  said  claimant  on  April  5,  1877,  after  having 
examined  the  voluminous  diplomatic  correspondence  caused  by  this 
affair.     This  opinion  was  as  follows: 

Though  the  Department  would  have  preferred  that  the  apology  for  your  arrest 
should  have  come  directly  from  that  functionary  ( President  Guzman  Blanco),  the 
fact  that  he  ordered  his  chief  of  police  to  make  it,  may  be  regarded  as  sufficient. 
Your  complaint  may,  however,  be  taken  into  consideration  when  diplomatic  inter- 
course with  Venezuela  shall  be  resumed,  but  you  (Mr.  Torrey)  must  not  expect  that 
this  Department  will  authorize  a  demand  for  vindictive  damages. 

Mr.  Bayard  in  the  same  communication  adds: 

Under  the  circumstances  of  the  case,  as  herein  presented,  further  diplomatic  inter- 
vention in  your  behalf  is  thought  to  be  neither  expedient  nor  proper.  The  Depart- 
ment must,  therefore,  regard  the  matter  as  practically  closed,  unless  you  can  show 
to  it  that  the  apology  made  was  not  a  sufficient  atonement  for  the  injury  done  to  you, 
or  that  an  error  has  accrued  to  your  prejudice  in  the  Department's  decision. 

This  decision  need  not,  however,  prejudice  your  ultimate  rights  if  you  see  fit  to 
present  and  support  a  claim  before  any  international  tribunal  which  may  hereafter 
be  organized  to  take  cognizance  of  cases  arising  since  the  award  of  the  late  Caracas 
Commission. 

As  it  appears  from  the  above  communications,  and  as  it  is  plainly 
shown  l)y  the  voluminous  correspondence  between  the  two  departments 
of  foreign  affairs  of  both  Governments,  the  incident  of  the  four  hours' 
arrest  of  the  American  citizen,  Charles  W.  Torrey,  in  the  fortof  La 
Guayra,  was  the  act  of  a  local  officer  and  was  due  to  special  circum- 
stances of  that  epoch,  in  which  act  there  was  no  intention  to  hurt  by 
any  means  the  person  of  an  American  citizen,  and,  on  the  contrary, 
the  same  gave  occasion  for  the  President  of  the  Republic,  General 
Guzman  Blanco,  as  soon  as  he  knew  of  said  arrest  to  order  by  telegragh 
that  the  prisoners  be  put  at  liberty;  thus: 

Electric  Telegkaph  of  Venezuela, 

From  Curacdx  to  La  (luayra,  May  9,  1S76. 

(5  hours,  25  minutes.) 

Gen.  J.  J.  Yepez: 

Those  gentlemen  should  not  have  taken  passage  to  Cura(;ao  when  their  passports 

were  for  the  United  States  of  America,  but  J  have  reason  to  conlide  in  them,  thus 

I  expect  you  will  put  them  in  liberty,  stating  to  them  that  you  are  sorry  for  what 

has  happened.     The  steamer  has  my  permissicm  to  leave  as  soon  as  those  gentlemen 

are  on  board. 

Guzman  JiLANco. 

In  view  of  the  foregoing,  and  regarding  the  compensation  to  be 
given  in  this  case  as  limited  to  reparation  for  th(>,  personal  inconven- 
ience and  discomfort  suffered  by  the  claimant  during  his  brief  deten- 
tion, and  award  will  1)e  made  in  the  sum  of  $250  United  States  gold. 

The   United  States    and  Venezuelan   Claims    C'onnnission,    sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  The  United  States  of  America  on  behalf  of  Charles 
W.  Torrey,  claimant,  against  the  Republic  of  Venezuela,  No,  24,  the 
sum  of  two  hundred  and  fifty  (hdlars  ($250)  in  United  States  gold  is 


332  REPORT    OF    ROBERT    C.   MORRIS. 

luMvby  awarded  in  i':ivor  of  said  claimant,  which  sum  shall  be  paid  by 
(he  (Jovcnmiciit  of  Venezuela  to  the  (government  of  the  United  States 
of  Amerii-a  in  accordance  with  the  ])r()visions  of  the  convention  under 
which  this  awai-d  is  made. 

,] .  i)K  .J .  Paul, 
Com  miss  loner  071  the  part  of  Venezuela. 
William  E.  Bainbridge, 
Commission,!'  on  fJu'-jxtrt  of  the  United  States  <f  Anierica. 

Attest  to  award: 

Harry  I^arck,  J^nsident. 
Attest: 

,1.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 
Secretat'ij  (m  thejxirt  (f  the  United  St(dcs  of  America. 
Delivered  August  25,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America   on   behalf] 

of  George  E.  Gage,  claimant,  I  ^^   25 

■r. 
The  Republic   of  Venezuela. 

brief  on  behalf  of  the  tjnited  states. 

The  United  States  presents  in  this  case  the  claim  of  George  E. 
Gage  for  damages  for  false  arrest  and  imprisonment  and  imlawful 
detention  and  personal  indignities  connected  therewith. 

The  claimant  is  a  native-born  American  citizen.  His  complaint 
relates  to  his  arrest  at  La  Guayra  December  26,  1900.  The  evidence 
submitted  in  the  sworn  statements  of  Messrs.  Gage  and  Bartlett  and 
the  accompanying  affidavits  shows  this  arrest  to  have  been  entirely 
without  justification,  and  although  the  prisoner  was  soon  released  he  was 
treated  while  in  confinement  with  great  indignit3^ 

The  clahn  is  for  damages  for  the  personal  injuries,  and  also  for 
resulting  pecuniary  loss,  in  the  loss  of  an  option  for  the  purchase  of 
some  copper  mines,  which  option  he  was  unable  to  avail  himself  of  by 
reason  of  his  being  unable  to  take  the  steamer  which  he  had  intended 
to  take  from  La  Guayra. 

The  claim  was  submitted  diplomatically  to  the  Government  of  Vene- 
zuela early  in  January,  1901.  The  position  taken  by  the  Venezuelan 
authorities  was  that  Gage  was  in  a  deplorable  state  of  drunkenness, 
warranting  the  arrest.  This  position  of  the  Government  of  Venezuela 
is  supported  by  the  sworn  affidavits  of  several  gentlemen  to  the  eflect 
that  Messrs.  Gage  and  Bartlett  were  unduly  ridiculing  a  Venezuelan 
gentleman  on  the  train  from  Caracas  to  I^a  Guayra. 

These  contentions  on  the  part  of  the  Venezuelan  Government  are 
fully  met  by  the  answering  aflidavits  of  Mr.  Gage,  and  also  by  the 
papers  submitted  as  part  of  the  original  claim,  especially  the  direct 
statement  of  Philip  Scott,  who  was  the  conductor  on  the  train  at  the 
time,  that  these  two  gentlemen  were  not  in  any  way  disorderly. 


KEPOET  OF  ROBERT  C.  MORRIS.  333 

There  is  also  in  the  case  an  official  communication  of  Mr.  Loomis, 
of  date  Februar}'  10,  1901,  that  Mr.  Gage  was  visited  b}-  the  United 
States  consul  at  La  Guaj^ra  at  7  o'clock  the  evening  of  his  arrest — the 
arrest  having  been  made  at  3  o'clock — and  that  there  was  nothing  about 
him  to  indicate  that  he  was  intoxicated  or  intemperate  in  the  use  of 
intoxicating  liquors. 

In  this  apparent  conflict  of  testimony  there  is,  however,  one  circum- 
stance that  is  controlling,  and  that  is  that  these  two  gentlemen.  Gage 
and  his  companion  Bartlett,  were  immediately  released  b}"  the  Vene- 
zuelan authorities  without  having  been  brought  to  trial.  This  is  a 
concession,  made  at  the  time,  by  the  Venezuelan  Government  that  it 
had  no  right  to  arrest  them,  and  this  concession,  made  at  the  time, 
must  outweigh  all  expressions  of  opinion  made  at  some  interval  of 
time  thereafter  of  persons  on  the  train,  to  the  effect  that  these  two 
gentlemen  were  disorderl}"  or  intoxicated. 

The  most  that  can  be  said  in  the  case  in  favor  of  the  Venezuelan 
Government  would  be  that  its  officers  allowed  themselves  to  commit 
an  unlawful  act  upon  the  unwarranted  complaint  of  some  gentleman 
on  the  train  whose  feelings  were  perhaps  unintentionall}^  touched  b}' 
these  two  American  gentlemen.  The  statements  of  the  conductor  in 
charge  of  the  train  that  these  gentlemen  were  not  disorderly,  coupled 
with  the  fact  we  have  already  referred  to  of  their  immediate  release, 
amounts  to  proof  conclusive  that  the  arrest  was  unjustified. 

In  any  event,  even  if  there  had  been  an  excuse  for  the  arrest,  there 
is  no  excuse  for  the  indignities  which  the  record  sho^ys  these  gentle- 
men were  subjected  to  during  the  term  of  their  imprisonment,  how- 
ev^er  short.  For  such  indignities  there  is  liability  separate  and  distinct 
from  that  of  the  false  arrest.  In  this  case  the  claimant  is  entitled  to 
recover  upon  both  grounds. 

There  can  be  no  question  from  a  legal  standpoint  of  the  liability  of 
the  Republic  of  Venezuela  to  respond  in  damages  upon  the  facts  in 
this  case.  See  the  cases  of  this  character  which  have  arisen  before 
similar  commissions,  collated  by  Mr.  Moore  in  his  work  on  Inter- 
national Arbitrations,  volume  4,  page  3235  et  seq. 

In  the  cases  here  collated,  there  has  universally  been  held  to  be  a 
liability  for  an  arrest  and  imprisonment  without  cause,  for  undue 
detention  even  where  the  arrest  was  based  upon  probable  cause,  for 
harsh  and  arbitrary  treatment  during  imprisonment  whether  the  arrest 
was  warranted  or  not. 

Applying  these  principles,  as  to  which  there  can  be  no  question,  to 
the  facts  of  this  case,  we  submit  an  award  should  be  made  for  the 
claimant. 

The  memorial  originally  presented  to  the  United  States  was  m  favor 
of  both  Messrs.  Gage  arid  Bartlett.  The  claim  is  presented  to  the 
Commission  on  the  amended  memorial  of  :\Ir.  (Jage  alone,  of  dat(^  of 
May  18, 1903— Mr.  Bartlett,  by  letter  of  similar  date,  having  withdrawn 
his  claim,  for  the  reasons  therein  stated.  .  .    ,  , 

The  amounts  claimed  are  consequently  the  amounts  specihiul  by 
Mr.  Gage  in  his  amended  memorial  of  May  18,  1903.  These  amounts 
we  submit  are  reasonable  and  just  and  an  award  should  be  made  m 
their  aggregate  amount. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


334  REPORT  OF  ROBERT  C.  MORRIS. 

[Triuislation.] 

George  E.  Gage,  Claim  No.  25. 

JhmorahJe  memhcrx  ofihe  Venezicelan- American  Mixed  Commission. 

The  iindersiti-ncd  agent  of  the  Government  of  the  United  States  of 
Veneziiehi  haiT. studied  the  ehiim  presented  hy  the  American  citizen 
George  E.  Gage,  and  respectfully  states  to  the  tribunal: 

The  present  claim  is  one  oi  the  most  unjust  which  could  he  presented 
to  the  consideration  of  tiiis  honorable  Connnission. 

The  claimant  was  traveling  in  company  with  a  friend  and  fellow- 
countrvman  in  the  train  from  Caracas  to  La  Guaira.  Both  moved  by 
an  inspiration,  the  cause  of  which  is  needless  to  state,  began  to  ridicule 
one  of  the  most  respected  members  of  this  society.  The  indignation 
which  such  an  act,  so  contrary  to  the  most  elemental  duties  of  courtesy 
and  mutual  respect  between  educated  persons,  caused  among  the 
passengers  induced  them  to  call  the  attention  of  an  inferior  police 
employee,  who  w\as  on  board  the  train,  to  what  was  taking  place. 
Said  eniployee,  at  the  termination  of  the  trip  and  in  fulfillment  of  his 
functions,  put  the  individuals  above  referred  to  under  arrest. 

The  preceding  account  is  in  entire  conformity  with  the  facts  which 
occurred  as  is  shown  by  a  deposition  of  all  the  passengers,  a  certified 
copy  of  which  was  sent  to  the  American  legation  in  this  city  by  the 
minister  of  foreign  affairs.  The  undersigned  submits  this  deposition 
in  certified  copy. 

It  is  impossible  to  believe  that  persons  enjoying  common  sense  and 
having  the  social  standing  of  the  declarants  would  have  been  willing 
to  distort  the  facts  as  set  forth  in  their  depositions  for  the  sole  pleasure 
of  slandering  a  third  party.     No;  such  facts  are  clearly  true. 

The  undersigned  deems  it  unnecessary  to  discuss  the  question  of 
wdiether  the  claimant  and  his  companion  had  taken  liquor.  The  facts 
being  proved,  the  cause  which  produced  them  lacks  importance  in  the 
determination  of  the  case. 

The  claimant  complains  of  illtreatment  on  the  part  of  the  police 
officers,  of  having  been  conducted  to  an  unhealthy  cell,  and,  finally, 
of  having  lost,  on  account  of  his  arrest,  the  option  of  purchasing  some 
copper  mines— all  of  which  he  estimates  in  a  disproportionate  and 
enormous  sum. 

With  regard  to  the  first  point  there  is  no  other  proof  than  his  own 
affirmation,  too  interested  to  constitute  a  decisive  element;  with  regard 
to  the  second,  it  is  undenial)le  that  the  detained  persons  were  conducted 
to  the  only  establishment  of  correction  in  La  Guaira,  and,  touching 
the  third  point,  it  must  ])e  admitted  that  if  the  claimant  suffered  any 
real  damage,  he  must  blame  himself  for  it. 

The  claimant  does  not  state  what  the  option  was  that  he  lost,  with 
what  parties  he  was  in  negotiation,  nor  to  w^hat  mines  he  referred — 
data  that  are  all  of  the  first  importance  in  order  to  establish  counter 
proof.  It  is  very  convenient  and  easy  to  thus"  claim  the  most  illusory 
damages. 

The  argument  that  has  been  made  that  the  persons  detained  should 
have  been  prosecuted  lacks  weight.  The  local  police  ordinances 
do  not  provide  summary  trial  for  the  imposition  of  correctional 
punishments. 

It  appears  f lom  the  proofs  that  the  claimant  connnitted  a  fault,  that 
the  police  authorities  proceeded  in  strict  compliance  with  their  duties, 


REPORT  OF  ROBERT  C.  MORRIS.  335 

and  that  the  damages  alleged  have  not  been  established  by  any  proof. 
The  claim  ought  therefore  to  be  disallowed. 

A  moral  consideration  which  ought  to  strongl}^  influence  the  mind  of 
the  tribunal  in  disposing  of  this  case  is  the  Avithdrawal  of  the  Bartlett 
claim.  Such  an  act  represents,  no  doubt,  the  spontaneous  reparation 
of  an  honorable  conscience  which  recognizes  its  error  and  tries  to 
remedy  it. 

Before  a  tribunal  of  equity,  such  as  the  present,  the  considerations 
which  arise  from  such  an  act  must  be  conclusive. 

Caracas,  July  13,  1903. 

F.  AoRROYO  Pauejo. 

The   United  States  and  Venezuelan    Claims   Conunission,   sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 

of  George  E.  Gage,  claimant, 

v. 

The  Republic  of  Venezuela. 


y  No.  26. 


Bainbridge,  Commission er. 

This  claim  arises  out  of  the  arrest  of  the  claimant,  Gage,  and  one 
Fred  R.  Bartlett,  citizens  of  the  United  States  at  Le  Guaira,  on  the 
evening  of  December  26,  1900. 

The  arrest  was  made  by  the  mayor  of  La  Guaira,  who  had  been  a 
fellow-passenger  of  the  parties  named  on  the  afternoon  train  from 
Caracas,  on  the  ground  that  the  conduct  of  Messrs.  Gage  and  Bartlett 
during  the  trip  had  been  prejudicial  to  good  order,  as  tending  to  cause 
a  disturl)ance  of  the  peace.  The  testimony  as  to  whether  the  arrest 
was  warranted  or  not  is  conflicting,  although  it  must  be  said  the  weight 
of  the  evidence  is  to  the  effect  that  the  conduct  of  these  men  was  lack- 
ing in  discretion.  It  is  not  deemed  necessary,  however,  to  discuss  the 
evidence  upon  this  point  in  detail.  The  claim  turns  primarily  upon 
the  occurrences  subsequent  to  the  arrest. 

The  complaint  sworn  to  by  both  Gage  and  Bartlett  on  December 

29,  1900,  states: 

Arriving  at  the  jail  we  were  placed  in  a  small,  dirty,  dingy  room  with  eight  or  ton 
prisoners  .ind  with  no  accommodations  of  any  kind.  Our  money  and  valuables  were 
taken  from  us  as  we  Avere  registered  and  searched.  Sliortly  after  one  of  the  prisoners 
offered  us  a  bench  and  we  sat  down  and  conversed  ciuietly  together,  and  a<ldressed 
no  remarks  to  any  one.  After  having  been  seated  for  at)out  fifteen  minutes  (h(>  chief 
of  the  prison  guard  entered  the  room  and  roughly  ordered  us  off  tlie  beucii.  and 
taking  the  bench  in  his  hands  raised  it  over  !\Ir.  (Jage's  head  and  threatened  to  kill 
him  if  he  made  the  slightest  protest,  al)used  us,  and  then  left  the  room.  While  we 
were  in  the  prison  we  asked  permission  of  the  chief  of  the  guard  and  liisaids  to  (;oin- 
municate  by  telephone  with  the  American  cf)nsul  in  J.a  (Juaira  or  the  American 
minister  at  Caracas.  This  request  was  absolntely  re-fused,  and  we  were  told  that  the 
American  consul  had  been  at  the  jail,  but  why  we  did  not  see  him  was  not  explained. 

They  were  released  without  any  trial  about  half  past  7  that  evening, 
their  money  and  valuables  l)cing  returned  to  them.  Their  imprison- 
ment lasted  a})out  two  and  one  half  hours. 

The  citizen  or  subject  of  a  states  who  goes  to  a  foreign  country  is, 
during  his  stay  in  the  latter,  subject  to  its  laws  and  amenable  to  its 
courts  of  justice  for  any  crime  or  off'ense  he  may  commit  in  contra- 
vention of"  the  municipal  laws;  nor  can  the  (xovernment  to  which  he 
owes  allegiance  and  Avhich  owes  him  protection  properly  interpose 


336  REPORT    OK    llOHEKT    C.    MORRIS. 

unless  justice  is  denied  liini  or  unie:is()ntil)ly  delayed.  This  principle, 
however,  does  not  interfere  with  llie  right  iind  duty  of  a  state  to  pro- 
tect its  citizens  when  abroad  from  wrongs  and  injuries,  from  arbitrary 
acts  of  oppi'cssion  or  deprivation  of  pro})erty,  as  contradistinguished 
from  penalties  and  punishments  incurred  i)y  the  infraction  of  the 
laws  of  the  countries  within  whose  jurisdiction  the  sufferers  have 
placed  themselves. 

It  would  seem  too  clear  for  argument  that  the  denial  to  a  foreigner, 
arrested  for  an  alleged  infi-action  of  the  municipal  law,  of  the  oppor- 
tunity to  connuunicate  with  the  representatives  of  his  Government  is 
an  arbitrary  act  of  oppression,  amounting,  in  itself,  to  a  denial  of 
justice.  While  amenable  to  the  nuuiicipal  law,  the  accused  is  entitled 
to  a  speedy  and  impartial  trial  under  every  civilized  code,  and  to  such 
assistance  in  securing  a  proiupt  and  impartial  trial  or  in  other  ways 
as  it  may  be  within  the  province  of  the  representatives  of  his  Govern- 
ment to  render. 

The  responsibilit}^  of  a  government  for  the  acts  of  its  administrative 
officials,  injuriously  affecting  the  rights  of  aliens,  is  beyond  question. 

Presumably  acts  done  by  them  [says  Hall]  are  acts  sanctioned  by  the  State,  and 
until  such  acts  are  disavowed,  and  until,  if  they  are  of  sufficient  importance,  their 
authors  are  punished,  the  State  may  fairly  be  suj^posed  to  have  identified  itself  with 
them. 

The  conduct  of  the  jefe  civil  and  the  police  officers  at  La  Guayra 
in  connection  with  the  arrest  and  detention  of  Mr.  Gage  was  promptly 
brought  to  the  attention  of  the  Venezuelan  Government  by  the  Gov- 
ernment of  the  United  States  through  its  legation  at  Caracas,  and  such 
apology  and  reparation  required  as  were  deemed  justified  under  the 
rules  of  international  law  herein  stated.  So  far  as  the  evidence  shows, 
however,  the  acts  of  the  civil  authorities  were  not  disavowed,  nor  were 
their  authors  punished. 

For  these  reasons  1  am  of  opinion  that  an  award  should  l)e  made  in 
this  claim. 

The   United  States  and  Venezuelan    Claims   Commission,   sitting   at 

Caracas,  Venezuela. 

The  United   States  of  America,  on  behalf] 

of  George  E.  Gage,  claimant,  !  -^t     (^^ 

The  Republic  of  Venezuela.  J 

Doctor  Paul,  Comtnissiot^er. 

I  regret  to  disagree  with  the  opinion  of  the  honorable  Commissioner 
of  the  United  States  in  this  case. 

The  evidence  presented  is  in  itself  sufficient  to  prove  that  George  E. 
Gage  misdemeaned  himself  during  his  trip  from  this  city  to  the  port 
of  La  Guayra,  and  that  he  well  deserved  the  punishment  inflicted  on 
him  upon  his  arrival  at  La  Guayra  l)y  the  civil  authority  who  was  a 
witness  to  Gage's  doings. 

Said  punishment,  which  was  only  an  arrest  of  two  and  one-half 
hours,  is  sanctioned  by  law,  and  it  is  within  the  power  of  civil  author- 
ities to  administer  such  in  a  sununary  way,  without  previous  formal 
trial,  in  cases  of  disorderly  behavior  in  public  places  or  in  cases  of 
misdemeanor  against  other  persons.  This  last  was  the  case  of  Gage, 
which  happened  to  be  witnessed  by  the  authority.     The  ill  treatment 


REPORT  OF  ROBEET  C.  MORRIS.  337 

and  incommunication  with  his  minister  or  consul  of  which  ho  com- 
plains he  was  a  victim  during  his  arrest  onl}"  appears  from  the  state- 
ment of  the  claimant,  whose  truthfulness  in  the  present  case  is  doubt- 
ful, considering  that  in  the  memorial  presented  In'  him  he  goes  as  far 
as  to  distort  Dr.  N.  Zuloaga's  declaration,  who,  according  to  Gage, 
said  "  in  case  of  an  international  claim,  he  would  side  with  his  Govern- 
ment regardless  of  truth."  The  deposition  of  Elias  de  Leon,  who  was 
present  as  interpreter,  at  the  interview  between  Doctor  Zulaoga  and 
Gage,  states  the  contrary,  and  he  assures  that  Doctor  Zuloaga  said: 
"This  matter  is  not  worth  raising  an  international  question,  but  if  it 
comes  to  this,  I  am  a  Venezuelan  in  the  first  place,  and  1  will  be  at  the 
side  of  my  Government  and  will  accomplish  my  dut3^" 

There  is  a  ver}^  substantial  difference  between  fulfilling  one's  duty 
and  being  regardless  of  truth,  a  difference  which  the  claimant  does 
away  with,  with  a  deliberate  purpose  of  diminishing  the  weight  of  the 
declaration  of  a  person  who  is  perfectly  truthful  by  temperament  as 
well  as  b}'  education  and  who  had  been  the  gratuitous  victim  of  Gage's 
sneers  and  misbehavior  which  caused  him  to  be  arrested. 

1  am  of  opinion  that  the  claim  of  George  E.  Gage  must  be  dis- 
allowed. 

The   United   States  and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America,  on  behalf^ 
of  George  E.  Gage,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  25. 


The  Umpire: 

A  difference  of  opinion  having  arisen  between  the  Commissioners 
of  the  United  States  of  North  America  and  the  United  States  of  Ven- 
ezuela, this  case  was  duly  referred  to  the  umpire. 

The  umpire,  having  fully  taken  into  consideration  the  protocol  and 
also  the  documents,  evidence,  and  arguments,  and  likewise  all  the 
communications  made  by  the  two  parties,  and  having  impartially  and 
carefully  examined  the  same,  has  arrived  at  the  decision  embodied  in 
the  present  award: 

^^'hel■eas  the  claimant  claims  for  damages  for  false  arrest  and  impris- 
onment, unlawful  detention,  and  personal  indignities  connected  there- 
with; and 

Whereas  it  appears  from  the  declaration  of  the  witnesses,  General 
Garcia,  civil  chief  of  tlie  parish  of  La  Guayra,  Dr.  N.  Zuloaga,  Dr. 
A.  M.  Diaz,  Dr.  F.  IlermandezTovar,  and  E.  Ochoa,  that  the  claimant, 
in  a  first-class  carriage  of  the  Caracas  and  La  Guayra  Railway,  in 
which  he  traveled  together  with  the  witnesses,  behaved  in  a  way  as  if 
he  were  intoxicated  and  indulged  in  actions  that  were  liable  to  disturb 
the  public  peace,  which  declarations  do  not  seem  to  bo  sulHciently  con- 
tradicted by  the  declaration  of  the  conductor  of  the  railway,  Avho  oidy 
from  time  "^to  time  walked  through  the  cari'iages,  and  was  not,  as  (he 
other  witnesses  were,  in  his  constant  society,  nor  by  the  declai-ation 
of  the  consul  of  the  United  States  of  North  America  at  La  (Juayra, 
who  only  saw  him  two  and  one-half  hours  later;  and  Avhereas,  there- 
fore, the  act  of  the  police  officer  who  ordered  claimant  to  be  arrested 
S.  Doc.  .317,  58-2 22 


338  REPORT  OF  ROBERT  C.  MORRIS. 

and  ])iit  into  jail  for  di.^turbing  public  order  cun  not  be  said  to  be 
unlawful,  the  charg-e  of  false  arrest  and  imprisonment  can  not  be 
atlmittod. 

W'luMt'as.  furthermore,  the  prisoner  was  let  free  after  about  two 
and  a  half  hours  of  detainment;  and 

Whereas  in  case  of  a  detention  by  the  police  in  behalf  of  public 
safety  of  a  person  who  in  a  state  of  intoxication  has  disturbed  and 
may  be  feared  furthermore  to  disturl)  the  public  peace,  a  detention  of 
little  more  than  two  hours  can  not  bo  said  to  l)e  excessively  long,  the 
charge  of  unlawful  detention  seems,  in  case  of  lawful  arrest,  not  to  be 
founded;  and 

Whereas  the  claimant  further  complains  that  his  request  to  commu- 
nicate with  the  American  consul  at  La  Guayra  or  the  American  min- 
ister at  Caracas  was  refused; 

Whereas,  however,  for  this  refusal  there  is  only  the  statement  of 
claimant  and  his  former  conclaimant,  Mr.  Bartlett,  whilst  out  of  the 
letter  of  the  minister  of  foreign  atlairs  of  the  United  States  of  Vene- 
zuela to  the  minister  of  North  America  of  April  2,  1901,  it  might  be 
concluded  that  instead  of  a  formal  refusal  there  might  have  been  only 
a  delay  commanded  by  circumstances,  and  whilst,  on  the  other  hand, 
it  is  proved  that  claimant  was  let  free,  after  about  two  hours  of  detain- 
ment, in  consequence  of— or  in  every  case  posterior  to — communica- 
tions between  the  Venezuelan  authorities  and  the  North  American 
consul  at  La  Guayra  and  the  North  American  minister  at  Caracas,  the 
fact  of  absolute  refusal  seems  doubtfully  proved.  The  rule  "in 
dubiis  pro  reo"  must  be  here  applied  in  favor  of  the  authorities  charged 
with  the  unjust  refusal. 

As  to  the  complaint  that  the  claimant  was  placed  in  a  small,  dirty, 
dingy,  stinking  room,  this  is  met  by  the  declaration  on  behalf  of  the 
Venezuelan  authorities  that  he  was  conducted  to  the  only  establishment 
of  correction  in  La  Guayra,  whereas  it  has  to  be  kept  in  mind  that  this 
kind  of  establishments  wall  almost  nowhere  seem  comfortable  for  per- 
sons of  claimant's  social  position. 

As  regards  the  further  ill-treatment  claimant  complains  of: 

Whereas  for  this  likewise  the  only  evidence  is  the  statement  of  the 
claimant  and  his  former  conclaimant,  Mr.  Bartlett;  but 

Whereas  it  has  to  be  considered  that,  from  the  nature  of  the  facts, 
as  to  the  treatment  of  prisoners  by  their  gaoler  (jailer)  it  will  always 
be  difficult  to  find  other  witnesses  besides  the  prisoners  themselves, 
and  whereas  it  has  further  to  be  considered  that  not  only  the  Vene 
zuelan  authorities  did  not  deny  the  facts,  but  that  there  is  no  trace  of 
these  authorities  investigating  the  facts  and  thus  trying  to  undo  the 
charge  that  was  brought  up  against  them;  and 

Whereas  this  Commission  has  to  investigate  and  decide  the  claims 
that  aie  brought  before  it  only  upon  such  evidence  and  information 
as  shall  l)e  furnished  by  or  on  behalf  of  the  respective  governments: 

It  seems  that  the  sworn-to  declaration  of  the  claimant  and  Mr. 
Bartlett,  as  presented  in  their  behalf  by  the  United  States  Govern- 
ment, not  contradicted  or  debilitated  by  any  other  evidence  or  by  any 
intrinsic  defect,  can  not  be  set  aside;  and 

Whereas  the  ill-treatment  by  the  officials  for  which  the  Government 
is  liable,  and  on  which  the  claim  is  founded,  exists  in  insults  and  in 
menaces  that  were  not  carried  out,  a  sum  of  $100  seems  a  just  reward, 
which  sum  is  hereby  allowed  to  the  claimant. 


REPORT  OF  ROBERT  C,  MORRIS.  339 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America,  on  behalf  of  George 
E.  Gage,  claimant,  against  the  Republic  of  Venezuela,  No.  25,  the  sum 
of  one  hundred  dollars  ('SlOu)  United  States  gold  is  hereby  awarded  in 
favor  of  said  claimant,  which  sum  shall  be  paid  by  the  Government 
of  Venezuela  to  the  Government  of  the  United  States  of  America,  in 
accordance  with  the  provisions  of  the  convention  under  which  this 
award  is  made. 

Harry  Barge,  Umpire. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 
Delivered  September  15,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of 

Februarj'-  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America,  ox  behalf] 

of  "William  B.  ]\Iatchett,  claimant,  j  x-      co 

r  r\0.   J.V). 

V.  { 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  William  B. 
Matchett  for  the  sum  of  $100,900  for  services  rendered  as  attorney  and 
counsel  to  the  Government  of  the  Republic  of  Venezuela. 


statement  of  the  case. 

The  claimant  is  a  native-born  citizen  of  the  United  States,  residing 
in  the  city  of  Washington  and  doing  business  there  as  an  attorney  at 
law.  He  was  employed  to  render  legal  sei'vices  to  the  Government  of 
the  Republic  of  Venezuela  ])etween  the  years  1873  and  1890,  under  the 
following  circumstances  and  of  the  following  character:  In  1808a  com- 
mission sat  at  Caracas,  Venezuela,  for  the  purpose  of  adjudicating  the 
claims  of  citizens  of  the  United  States  against  tlie  Republic  of  Vene- 
zuela, and  made  awards  to  various  persons,  aggregating  about  a  million 
and  a  quarter  of  dollars,  upon  which  the  Republic  of  V(Miezuela  begati 
making  payincMits. 

Subsequently,  about  1873,  the  Republic  of  Venezuela  hecanie  con- 
vinced that  the  awards  so  granted  were  fraudulent,  and  inunt'diatdy 
began  negotiations  with  the  (xovei-nment  of  the  United  States  for  a 
rehearing  of  the  claims  which  had  been  passed  upon  l)y  such  Commis- 
sion. 


3-iO  KEl'OKT    0¥    ROBERT    C.    MORRIS. 

The  c'lainiant,  ]\Ir.  Matchctt,  was  cinployod  l)v  the  officers  of  the 
Vene/iielan  (Tovernnient  to  present  this  matter  l)eforc  Congress,  com- 
mittees of  Congress,  and  to  the  State  Department  of  the  Government 
of  tlie  I'nited  States;  and  did  so  present  it,  as  appears  in  detail  in  his 
memorial  ami  aceompanying  papers,  from  1S78  on,  securing  tinally 
the  convention  of  18S5,  by  which  a  new  commission  was  appointed  to 
review  and  revise  the  work  of  the  former  commission  of  18r)8.  lie 
subsequently,  and  up  to  and  until  the  time  that  the  reviewing  com- 
mission was  appointed  and  determined  its  labors,  continued  to  act  in 
the  matter  for  the  Venezuelan  Government  as  special  counsel. 

He  makes  a  claim  for  compensation  in  the  sum  of  1100,900,  upon 
the  basis,  first,  that  such  was  the  reasonable  value  of  the  services, 
with  interest  from  the  time  the}'  were  rendered,  and,  secondly,  that 
the  agreement  so  made  with  the  officers  of  the  Venezuelan  Govern- 
ment was  that  such  should  be  the  basis  of  his  charge. 

II. 

The  facts  set  forth  in  the  meinorlal  and  accompanying  documents 
sufficiently  siqypoi't  the  claim. 

It  does  not  appear  that  at  the  time  of  the  original  appointment  of 
Mr.  Matchett  an}^  specilic  agreement  w^as  made  as  to  his  compensation; 
but  there  is  and  can  be  no  question  as  to  his  employment.  The  docu- 
mentary matter  attached  to  the  memorial  clearly  shows  the  appoint- 
ment, and,  moreover,  the  Venezuelan  Government,  by  entering  into 
the  new  convention  and  taking  advantage  of  Mr.  Matchett's  services, 
has  recognized  and  ratified  the  acts  of  its  agents  in  emplojdng  Mr. 
Matchett  for  that  purpose,  even  if  his  employment  had  not  been 
originally  made  b}^  Government  authority. 

Subsequently  an  agreement  was  made  by  these  agents  with  the 
claimant  fixing  his  compensation  as  here  asked  for;  and  it  can  not 
make  much  difference  in  this  case  whether  the  claim  is  rested  upon 
the  express  agreement  of  the  agents  of  the  Venezuelan  Government 
fixing  the  basis  of  the  compensation,  or  whether  the  amount  to  be 
awarded  Mr.  Matchett  is  determined  solely  with  reference  to  the  value 
of  the  services  rendered.  There  could,  we  think,  be  no  question  but 
that  the  agents  who  employed  him,  and  whose  acts  in  reemplojdng  him 
were  ratified  b}^  the  Government,  would  also  have  authority  to  fix  the 
basis  of  his  compensation,  and  that  nuist  also  be  regarded  as  having 
been  ratified  by  the  Government  of  the  Republic  of  Venezuela.  The 
Republic  of  Venezuela  could  not  accept  the  benefits  of  Mr.  Matchett's 
services  and  ratify  in  that  way  his  employment,  without  also  ratifying 
the  agreement  which  has  been  made  for  his  compensation. 

Moreover,  and  in  any  event,  the  mere  acceptance  of  the  services,  as 
was  so  plainly  done  in  this  case,  is  sufficient  to  lay  a  basis  for  a  claim 
for  compensation.  Having  accepted  the  benefit  of  the  services,  the 
Republic  of  Venezuela  is  bound  to  pay  either  the  sum  agreed  upon  or 
certainly  a  fair  and  reasonable  compensation  therefor. 

The  facts  as  to  the  nature  and  extent  of  the  service  clearly  show,  on 
the  one  hand,  an  agreement  with  the  officers  of  the  Venezuelan  Gov- 
ernment for  the  agreed  compensation  which  is  asked  for,  and  on  the 
other  hand,  that  these  services  were  of  such  a  nature  and  of  such 
importance  that  the  amount  claimed  can  not  be  regarded  as  anything 
but  a  low  and  reasonable  compensation  for  the  services  rendered. 


REPOET  OF  ROBERT  C.  MORRIS.  3-11 

III. 

The  jyresent  Crnnmission  has  full  and  amjple  pmneo'  to  hear  and  adjudi- 
cate this  claim .  > 

The  dismissal  of  this  claim  by  the  commission  appointed  under  the 
convention  of  1885,  which  met  in  1890,  was  for  want  of  jurisdiction 
onl}^,  and  upon  the  ground  that  the  claim  arose  under  a  contract  entered 
into  subsequent  to  the  meeting  of  the  commission  of  1867  to  1868,  and 
that  the  powers  of  the  commission  which  met  in  1890  were  limited  to 
a  review  of  the  cases  which  had  been  before  such  former  commission. 
The  dismissal  was  expressly  for  want  of  jurisdiction,  and  without  prej- 
udice to  the  prosecution  of  the  claim  elsewhere. 

The  contention  of  the  Venezuelan  authorities,  that,  in  dismissing  for 
want  of  jurisdiction,  the  commission  must  necessarily  have  determined 
the  merits  of  the  claim,  or  that  the  dismissal  without  prejudice  to  the 
prosecution  of  the  claim  elsewhere  meant  elsewhere  than  as  against 
Venezuela,  are  propositions  too  manifestly  absurd  and  unreasonable  to 
need  discussion. 

The  principle  is  recognized  by  every  code  of  municipal  law,  and 
also  by  international  and  public  law,  that  in  order  to  constitute  a  bar 
to  the  adjudication  of  an}^  claim  there  must  have  been  a  decision  upon 
the  merits,  and  that  a  dismissal  for  want  of  jurisdiction,  which  means 
for  want  of  power  to  determine  the  claim,  necessarily  means  that  the 
commission  did  not  have  the  power  to  decide  the  merits  of  the  case. 

Power  is,  moreover,  expressly  given  by  the  protocol  under  which 
this  Commission  has  been  appointed,  to  determine  all  claims  owned  by 
citizens  of  the  United  States.  Upon  this  power  there  is  no  limitation 
or  restriction  whatsoever.  If  a  claim  exists  in  favor  of  a  citizen  of  the 
United  States,  this  Commission  has,  therefore,  full  and  ample  power 
to  consider  and  determine  it. 

^^' 

An  award  should  he  made  hi  favor  of  the  claimant  for  the  full 
amount  of  $100^900^  vjith  interest. 

The  claim  being  one  for  compensation  for  services  actually  rendered 
as  attorney  and  counsel  to  the  Republic  of  Venezuela  in  a  matter  of 
grave  importance,  and  in  which  the  services  which  were  rendered 
were  successful  in  obtaining  for  the  Republic  of  Venezuela  the  relief 
sought,  an  award  should  be  made  for  the  full  amount  prayed  for, 
whether  it  be  based  upon  the  agreement  to  pay  that  amount  or  solely 
upon  the  obligation  to  pay  a  just  and  reasonable  compensation. 

Respectfully  submitted. 

Robert  C.  Mokris, 
Agent  (f  the  United  IStatea. 


342  KEPOKT    OF    KOJiEKT    C.   MORRIS. 

Crraiislalion.] 

William  B.  jMAniiKir ) 

V.  V Claim  No.  2U. 

Venezuela.  j 

ANSWER. 

To  the  Jlonorable  Memhers  of  the  Mixed  Venezuelan- American   Com- 

II)  issio/i : 

Tho  uiulovsigned,  aycnt  of  the  (lovernmcnt  ot"  the  ITnited  States  of 
^'em•/uola,  has  studiecl  the  chiiiii  presented  hy  William  B.  Matchett, 
an  Ameiieun  citizen,  and  respectfully  shows  to  the  Commission: 

The  claimant  is  a  law3"er  and  according  to  his  affirmation  his  debt 
against  Venezuela  grew  out  of  professional  services  rendered  to  the 
representatives  of  that  countrj^  in  Washington  in  obtaining  from  the 
American  Congress  the  revocation  of  the  findings  of  the  mixed  claims 
commission  of  18()7-08. 

The  claimant  has  for  a  long  time  been  claiming  to  have  tendered  to 
Venezuela  such  services  on  the  occasion  referred  to,  and  has  already 
made  a  charge  against  the  nation  of  $1,000,  which  was  paid  to  him. 

When  Mr.  File  was  the  representative  of  Venezuela  in  the  United 
States,  it  appears  that  he  agreed  with  the  claimant  to  pay  to  him  a  cer- 
tain sum  if,  through  his  influence,  he  should  aid  in  obtaining  the 
desired  revision.  Such  revision  was  decided  upon  the  3d  of  March, 
1883,  no  doubt  because  the  justice  and  honor  of  the  United  States 
demanded  it  from  the  moment  in  which  the  investigations  made  in  the 
House  of  Representatives  made  the  existence  of  fraud  clear  beyond 
discussion.  If  Mr.  Matchett  believes  that  such  a  result  was  due  to 
him,  it  is  his  place,  at  least,  to  prove  it,  which  he  has  not  done. 

It  was  presented  to  the  last  commission  of  1890  with  a  badly  drawn- 
up  plea,  but  in  which  he  affirmed  that  he  was  the  owner  of  certain 
certificates  of  the  former  commission  and  he  asked  that  they  be 
guaranteed  to  him  by  giving  him  new  ones  for  them,  according  as 
Venezuela  had,  in  his  belief,  agreed  on  account  of  services  received 
from  him.  It  seemed  to  the  commissioners  a  very  strange  idea  that 
that  Republic  should  have  agreed  to  preserve  the  value  of  certificates 
whose  nullity  was  claimed  and  which  was  the  result  of  steps  recom- 
mended by  the  claimant,  according  to  his  affirmation.  This  proof  he 
did  not  produce,  nor  could  be  produce  the  absurd  agreement  he 
invoked,  and  which  never  existed  except  in  the  imagination  of  the 
claimant. 

The  Venezuelan  lawj^er  opposed  consideration  of  the  claim  on  the 
ground  that  it  had  not  originated  prior  to  the  1st  of  August,  1868,  a 
limitation  set  forth  in  the  second  article  of  the  treaty  of  1885.  For 
these  reasons  the  commission  declared  its  incompetence  and  reje(;ted 
the  claim,  but  without  prejudice  to  the  right  of  its  presentation  before 
some  other  authority. 

As  may  be  seen  from  the  papers  submitted  by  the  claimant,  the  lat- 
ter does  not  prove  the  obligation  which  he  attributes  to  Venezuela 
concerning  him.  The  debt,  even  in  the  event — which  is  denied — that 
it  existed,  should  be  barred  on  account  of  the  lapse  of  more  than  thirty 
years.  .... 

The  inadmissibility  of  the  claim  should  be  declared. 

Caracas,  July  13,  1903. 

F.  Arroyo  Parejo. 


REPORT  OF  ROBERT  C.  MORRIS.  343 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


rNo.  26. 


The  United  States  of  America  ox  behalf 
of  William  B.  Matchett,  claimant, 

r. 
The  Republic  of  Venezlela. 

DECISION. 

By  the  Commission. 

The  Commission  disallows  the  claim. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

DECISION. 

In  re  the  claim  of  The  United  States  of  America  on  behalf  of  W  illiam  B. 
Matchett  against  the  Republic  of  Venezuela,  No.  26,  the  undersigned 
Commissioners,  having  caref  ulh'  and  impartially  examined  the  evidence 
presented  in  support  of  said  claim,  and  having  reached  the  conclusion 
that  said  claim  is  insufficient  to  establish  any  liability  on  the  part  of 
the  Government  of  Venezuela  to  the  claimant,  hereby  agree  and 
adjudge  that  said  claim  be  in  its  entirety  disallowed. 

William  E.  Bainbridge, 
Coinniissioner  on  the  2>(irt  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner'  on  the  jMt't  of  Venezuela. 
Attest  to  decision: 

Harry  Barge,  President. 

Attest: 

Rudolph  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

J.  Padr6n  Uztariz, 
Secretary  on  the i^rt  of  Venezuela. 

Delivered  September  4,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Lorenzo  Mercado,  claimant, 

r. 
The  Republic  of  Venezuela. 


No.  27. 


BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

1. 

STATEMENT   OF    FA<^T. 

The  United  States  in  this  case  presents  a  claim  for  damages  arising 
out  of  injuries  to  the  person  and  property  of  the  claimant  Lorenzo 


344  REPORT    OF    ROBERT    0.   MORRIS. 

Mercado.  The  amount  of  damages  hero  claimed  is  $60,000  for  the 
arrest  and  false  imprisomnent  of  the  claimant  for  the  space  of  nearly 
a  year,  and  $100,000  for  the  destruction  (»f  claimants  business  and  the 
loss  of  his  property  during  the  time  he  was  in  prison. 

The  claimant,  Lorenzo  Mercado,  is  a  native  of  Ponce,  island  of 
Porto  Kico.  The  treaty  of  peace  witii  Spain,  l)y  which  Porto  Rico 
was  ceded  to  the  United  States,  provided  that  an  act  of  Congress 
should  determine  the  status  of  the  inhal)itants  of  the  isVand  of  Porto 
Kico  with  respect  to  their  allegiance.  On  April  12,  1900,  Congress 
passed  a  law  relative  to  this  matter,  section  7  of  which  reads  as  follows: 

Skc.  7.  That  all  inhal^itants  i-ontinuing  to  reside  therein  who  were  Spanish  subjeeta 
on  the  eleventh  day  of  April,  eighteen  hundred  and  ninety-nine,  and  then  resided 
in  Porto  Rico,  and  their  children  born  subsequent  thereto,  shall  be  deemed  and  held 
to  be  citizens  of  Porto  Rico,  and  as  such  entitled  to  the  protection  of  the  United 
States,  except  such  as  shall  have  elected  to  preserve  their  allegiance  to  the  Crown  of 
Spain  on  or  before  the  eleventh  day  of  April,  nineteen  hundred,  in  accordance  with 
the  provisions  of  the  treaty  of  peace  between  the  United  States  and  Spain  entered 
into  on  the  eleventh  day  of  April,  eighteen  hundred  and  ninety-nine;  and  they, 
together  with  such  citizens  of  the  United  States  as  may  reside  in  Porto  Rico,  shall 
constitute  a  body  politic  under  the  name  of  The  People  of  Porto  Rico,  with  govern- 
mental powers  as  hereinafter  conferred,  and  with  power  to  sue  and  be  sued  as  such. 

In  pursuance  of  this  act  of  Congress  the  claimant  received  a  passport 
from  the  governor  of  Porto  Rico  and  is  therefore  entitled  to  the  pro- 
tection of  the  United  States. 

While  residing  temporarily  in  the  Republic  of  Venezuela,  and  doing 
business  there,  the  claimant  was  arrested  and  thrown  into  prison  on 
November  4,  1001.  He  was  held  prisoner  for  about  two  weeks  and 
was  then  set  at  liberty  until  the  6th  of  January,  1902,  when  he  was 
again  taken  into  custody,  and,  without  any  form  of  trial  whatever, 
was  held  prisoner  for  tlie  period  of  eleven  and  a  half  months,  being 
released  on  the  17th  of  November,  1902.  While  the  claimant  was 
imprisoned  the  business  which  he  was  conducting  was  so  interrupted 
that  it  became  ruined.  The  claimant's  house  which  was  mortgaged 
for  a  small  sum  of  money  was  sold  at  a  great  sacrifice  and  claimant's 
family  compelled  to  vacate  the  premises.  During  the  entire  period 
of  his  confinement  claimant  was  held  incomunicado,  was  allowed  no 
consultation  either  with  his  lawyers  or  friends,  and  w^hile  in  prison 
contracted  a  disease  which  was  at  the  time  epidemic  in  the  prison, 
and  which  has  permanently  injured  his  health;  although  he  repeat- 
edly asked  leave  to  be  taken  to  the  hospital  he  was  persistently 
refused. 

II. 

The  evidence  in  this  case  dearly  i<  up  ports  the  allegations  set  forth  in 
the  laeynorial  of  the  claiiiiant. 

There  are  annexed  to  the  memorial  various  affidavits  of  creditable 
witnesses  taken  in  due  form  before  the  consular  agent  of  the  United 
States  at  Caracas,  setting  forth  in  detail  the  facts  upon  which  the 
claim  is  based.  Among  the  witnesses  we  have  the  testimony  of  the 
physician  who  was  called  in  to  attend  the  claimant  during  his  illness 
in  the  prison,  and,  what  seems  to  be  even  stronger,  we  have  the  testimony 
of  the  warden  of  the  prison  himself,  in  which  he  states  that  he  took 
claimant  into  custody  and  held  him  prisoner  under  superior  orders, 
but  in  no  way  sets  forth  that  claimant  was  tried  by  any  court  of  jus- 


REPOET  OF  ROBERT  C.  MORRIS.  345 

tice  and  condemned  h\  the  proper  manner  to  suffer  imprisonment  b}' 
the  proper  judicial  authority.  In  the  face  of  the  evidence  there  can 
be  no  question  raised  as  to  the  fact  that  claimant  was  arl^itrarily  held 
a  prisoner  for  a  long  period  and  was,  during  the  time  of  his  incarcera- 
tion, treated  in  a  most  brutal  and  harsh  manner. 

III. 

The  acts  coviplained  ofhy^  the  claimant  were  the  acts  of  the  officials  of 
the  Venezuelcc7i  Governinent  while  such  persons  were  acting  in  their  offi- 
cial capacity  a) id  render  the  Ve7iezuelan  Government  liahle  in  damages 
to  claimant. 

There  can  be  no  question  from  a  legal  standpoint  as  to  the  liability 
of  the  Republic  of  Venezuela  to  respond  in  damages  on  account  of  the 
facts  stated  in  this  case.  Claims  for  damages  have  frequentl}'  arisen 
under  similar  circumstances  and  governments  have  been  held  respon- 
sible for  false  imprisonment  of  citizens  of  another  country.  For  a 
collection  of  cases  of  this  character  see  Moore's  International  Arbitra- 
tions, volume  4,  page  3235  et  seq. 

IV. 

There  can  he  no  question  as  to  the  liahility  of  the  Government  of  Ven- 
ezuela to  reimburse  claimant  for  the  damages  to  his  jrro2)erty  during  the 
period  of  his  incarceration. 

For  the  law  in  this  case  see  Moore's  International  Arbitrations, 
fourth  volume,  3235  et  seq.,  where  an  award  was  given  in  favor  of 
Captain  Baldwin  for  injuries  suffered  during  his  imprisonment  by 
Mexican  authorities. 

V. 

Claimant  is  clearly  entitled  to  an  award  hy  the  Commission  to  the 
extent  of  the  amounts  claimed  and  which  are  suhstantiated  by  the  evi- 
dence in  the  case,  unless  it  could  he  shown  that  the  claimant  was  not 
entitled  to  the  jyrotection  (f  the  United  States. 

The  proposition  that  the  claimant  is  entitled  to  the  protection  of  the 
Government  of  the  United  States  is  clearly  set  forth  in  tlie  law  of  Con- 
gress above  cited.  Claims  of  individuals  under  similar  (•ircumstaiices 
have  frequently  arisen  before  mixed  conunissions  adjudicating  claims 
of  United  States  citizens.  Several  of  these  cases  arose  under  the 
treaty  with  France  at  the  time  of  the  annexation  of  Louisiana  in  1803; 
other  cases  under  the  treaty  with  Spain  upon  the  annexation  of  Florida 
in  1809.  Cases  have  arisen  under  the  act  of  Congress  by  which  Texas 
was  annexed  to  the  United  States  in  1845;  also  in  the  case  of  the  annex- 
ation of  California  under  the  treaty  of  Guadelupe  Hidalgo  of  1S4S. 
(See  Wheaton's  Elements  of  International  Law,  (ith  edition,  p.  027, 
under  the  head  of  "Collective  naturalization."  See  also  vol.  2, 
Moore's  International  Arbitrations,  ]).  250i>.) 

An  award  sliould  be  made  as  prayed  for  by  claimant. 

Respectfully  submitted. 

R(jBEKT  C.  Morris, 

Agent  of  the  United  States. 


34G  REPORT    OF    ROliERT    C.   MORRIS. 

[■Prniislation.] 

Cliiiiu  of  LorcMizo  iNIerciulo,  No.  27. 

ANSWER. 

7o  the  hotioi'ahle  members  oft/w.  2Iixed  Yen wzuelan- American  Commis- 
sion : 

The  undert;ig'ned  agent  of  the  Government  of  the  United  States  of 
ViMuvuehih  has  studied  the  ehiini  presented  by  Mr.  Lorenzo  Mercado, 
a  uali\  e  of  the  eity  of  Ponce,  ishmd  of  Porto  Rico,  and  who  is  said  to 
bean  American  citizen,  and  respectfully  states  to  the  tribunal: 

The  uiidersioiied  docs  not  deem  it  necessary  to  enter  into  a  critical 
analysis  of  the  facts  on  which  the  claim  is  ))ased,  inasnuich  as  there  is  a 
preliminary  point  which  tirst  demands  determination.  It  is  the 
following: 

The  claimant  is  not  an  American  citizen,  and  in  the  event,  which  is 
denied,  that  he  should  be  an  American  citizen,  he  has  lost  his  rights 
through  having-  intimately  associated  himself  in  an  active  manner  in 
the  internal  politics  of  the  countr3\ 

Under  the  provisions  of  the  law  passed  by  Congress  on  the  12th  of 
April,  1900,  establishing  the  status  of  inhabitants  of  Porto  Rico,  it  is 
provided — 

That  all  inhabitants  continuing  to  reside  therein  who  were  Spanish  subjects  on  the 
eleventh  day  of  April,  eighteen  hundred  and  ninety-nine,  and  then  resided  in  Porto 
Rico,  and  their  children  born  subsequent  thereto,  sliall  be  held  to  be  citizens  of  the 
United  States.     *    *    * 

From  the  depositions  which  the  undersigned  submits  herewith  in 
original  it  is  shown  that  the  claimant  on  the  date  of  the  issuance  of  the 
aforesaid  law  did  not  reside  in  Porto  Rico,  and  such  residence  appears 
to  be  an  essential  condition  imposed  by  the  American  legislators  in 
order  to  acquire  the  status  of  a  citizen  of  the  United  States.  The 
honorable  agent  of  that  nation  speaks  of  a  passport  issued  to  Mercado 
by  the  governor  of  Porto  Rico,  but,  besides  the  fact  that  such  a  docu- 
ment can  not  be  compared  to  a  certificate  of  nationality,  the  date  on 
which  it  w^as  issued  is  not  shown  in  the  proceedings  nor  otherwise 
indicated,  and  it  may  very  well  have  been  after  the  events  on  which 
the  claim  is  founded. 

From  the  same  deposition  submitted  herewith  it  is  shown  that 
Mercado  exercised  militar}^  duties  in  the  Republic  and  that  he  has 
resided  here  since  1889. 

The  undersigned  also  submits  an  original  letter  from  the  claimant 
to  the  Chief  Magistrate  of  the  Republic  in  which  his  intervention  in 
political  internal  matters  is  explicitly  admitted  by  his  signature  of  it. 

On  account  of  all  that  is  set  forth,  the  inadmissibility  of  the  claim 
should  be  declared. 

Caracas,  July  13,  1903. 

F.  Arroyo  Parejo. 


REPORT   OF   ROBERT    C.   MORRIS.  347 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

arj"  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf  ~ 
of  Lorenzo  Mercado,  claimant, 

v. 
The  Kepublic  of  Venezuela.  J 


y  Nos.  27  and  30. 


Your  Honors:  I  am  just  in  receipt  of  a  letter  from  the  legation  of 
the  United  States,  in  this  city,  stating  that  Mr.  N.  A.  Paquet,  the 
attorne}"  in  fact  of  Mr.  Lorenzo  Mercado,  has  withdrawn  all  claims 
which  have  been  presented  to  this  honorable  Commission  b}^  the  United 
States  of  America  on  behalf  of  Mr.  jNIercado,  and  instructing  me  to 
take  formal  action  for  their  withdrawal.  In  consequence  I  hereby' 
formally  withdraw  claims  Nos.  27  and  30  from  the  further  consideration 
of  the  Commission. 

Very  respectfully,  Robert  C.  Morris, 

Agent  of  the  United  States. 

Caracas,  Venezuela,  August  15,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Felipe  Scandella,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  28. 


BRIEF   ON   BEHALiF   OF   THE   UNITED    STATES. 
1. 

statement  of  fact. 

The  United  States  presents  in  this  case  the  claim  of  Felipe  Scandella, 
as  charterer  of  the  schooner  Harry  Troop,  for  $8,000  for  unlawful 
detention.  The  claimant  is  a  native-born  citizen  of  the  Unitetl  States 
engaged  in  the  maritime  transport  business.  He  sailed  from  New 
York  for  Ciudad  Bolivar  on  the  30th  of  April,  1902,  and  arrived  at 
San  Felix  on  the  1st  dav  of  June.  Upon  arrival  at  this  port  the 
schooner  was  boarded  })V  three  government  officers,  who  informed  the 
captain  that  he  could  not  proceed  to  his  destination  until  further 
orders  from  Gen.  rJulio  Sarria  Hurtado,  the  constitutional  president 
of  the  State  of  Guayana.  The  captain  of  the  schoonei-  gave  to  these 
officers  a  bill  of  health.  Several  retjuests  were  made  during  the,  month 
of  June  to  General  Sarria  that  the  vessel  should  he  reUnised  hi  order 
to  enable  her  to  proceed  to  Ciudad  Bolivar.  On  the  1st  day  of  July 
General  Sarria  issued  a  written  order  refusing  to  allow  the  vessel  to 
continue  to  her  port  of  destination.  After  a  three  months'  detention 
at  San  Felix  Mr.  Scandella  was  allowed  to  continue  to  Ciudad  Bolivar 


348  REPORT  OK  ROBERT  0.  MORRIS. 

in  a  t-anoo  with  tlio  pilot  of  his  schooner,  hy  virtue  of  a  .special  passport 
issued  l)v  tiio  orclcM-  of  tiio  military  chief. 

At  the  time  of  the  detention  of  the  schooner  there  was  no  l)lockade 
of  tho  Orinoco  Ki\  ei-,  but  twcnty-ci»;ht  days  after  a  decree  was  issued 
creatino-  a  blockade  of  the  river.  Durino-  his  det(>ntion  in  San  Felix 
INIr.  Sc'andella  was  taken  ill  with  fever,  which  he  contracted  at  said 
port,  and  his  liealth  has  been  wrecked  in  consequence.  The  total  time 
of  his  detention  was  three  months  at  the  port  of  San  Felix  and  subse- 
(jueiitly  seventy-ei^ht  days  at  Ciudad  Holivar. 

II. 

The  Veiiezuelan  Government  is  liable  in  this  case  for  the  unlawful 
detention  of  this  vessel  and  the  damages  consequent  thereon. 

The  seizure  of  this  vessel  was  without  warrant,  and  the  only  proba- 
])le  cause  which  could  be  assigned  was  that  the  revolutionary  ymrty 
was  in  possession  of  the  port  for  which  the  vessel  was  bound.  The 
blockade,  however,  was  not  established  by  the  Government  until 
twenty-eight  days  after  the  order  detaining  the  vessel,  and  the  right 
to  relief  in  such  "a  case  is  clearly  established  by  the  principles  of  inter- 
national law.  (See  the  case  of  the  Franklin,  reported  in  fourth  Moore's 
International  Arbitrations,  at  page  3783.)  In  this  case  the  American 
ship  FranMin  sailed  from  Boston  for  California  laden  with  a  valuable 
cargo.  She  was  detained  in  upper  California  by  order  of  the  Mexican 
general  commanding  at  San  Diego.  There  were  no  judicial  proceed- 
ings, and  after  a  long  detention  the  master  of  the  vessel,  finding  that  it 
was  the  intention  of  the  general  to  get  possession  of  both  the  ship  and 
cargo,  ran  away  with  his  vessel  to  the  Hawaiifin  Islands.  An  award 
of  over  $100,000  was  made  by  the  miipire  in  this  case. 

Also  see  the  case  of  the  Lahuan,  in  the  fourth  volume  of  Moore's 
International  Arbitrations,  at  page  3791.  This  was  a  case  where  the 
British  steamship  Lahuan  was  in  the  port  of  New  York  laden  with  a 
cargo  of  merchandise  destined  for  Matamoras.  Upon  the  5th  of  Novem- 
ber, 1862,  her  master  presented  the  manifest  to  the  proper  officer 
of  tlie  custom-house  at  New  York  for  clearance,  but  such  clearance 
was  refused  and  such  refusal  continued  until  the  13th  of  December 
following.  In  the  memorial  in  this  case  it  was  claimed  that  the  deten- 
tion arose  from  instructions  received  by  the  custom-house  officers 
from  the  proper  authorities  of  the  United  States,  the  object  being  to 
detain  vessels  destined  for  ports  in  the  Gulf  of  Mexico*,  and  thus  pre- 
vent the  transmission  of  information  regarding  a  military  expedition 
fitted  out  by  the  authorities  of  the  United  States.  The  damages  claimed 
were  for  i^38,000,  and  the  Commission  unanimously  made  an  award  in 
favor  of  (laimant  for  ^37,392. 

See  also  the  case  of  the  Tubal  Cain,  fourth  volume  of  Moore's  Inter- 
national Arbitrations,  page  3793.  This  was  the  case  of  a  British 
steamship  chartered  at  New  York  for  a  voyage  to  Matamoras  and  back 
to  New  York.  On  April  8,  1863,  when  she  was  ready  to  sail,  she  was 
held  by  United  States  authorities  at  the  port  of  New  York  on  the 
ground  that  she  was  undertaking  an  illicit  voyage  to  the  blockaded 
ports  of  Texas;  that  she  was  carrying  contraband  of  war,  and  that  she 
had  on  board  passengers,  one  of  whom  was  an  agent  of  the  Confeder- 
ate Government,  engaged  in  contraband  trade  with  the  enemy.     On 


REPORT  OF  ROBERT  C.  MORRIS.  349 

May  20,  following,  the  War  Department  made  a  report  inculpating 
two  of  the  passengers  but  exculpating  the  owner  and  charterer  of  the 
vessel.  The  Department  also  held  that  there  was  probable  cause  for 
the  previous  detention,  but  recommended  that  the  vessel  be  discharged. 
It  was  not,  however,  surrendered  until  July  16.  The  Commission 
unanimously  awarded  $4,800  for  her  detention. 

III. 

An  award  should  he  made  in  this  case  for  the  full  amount  of  the 
claim. 

The  claims  for  damages  in  this  case  are  for  injuries  through  the 
personal  detention  of  the  claimant  and  total  loss  of  time  and  business, 
as  well  as  necessar}^  expenses  to  which  he  was  put  on  account  of  his 
illness,  which  was  brought  on  by  being  detained  at  the  port  of  San 
Felix.  We  think  that  it  is  clear  this  is  a  more  than  moderate  demand. 
The  action  of  the  Venezuelan  Government  was  wholly  unwarranted, 
and  an  award  should  be  made  for  the  full  amount  claimed. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


Felipe  Scandella  ) 

V.  VNo.  28. 

ENEZUELA. 


[Translation.] 


ANSWER. 


Honorable  members  of  the  Venezuelan-American  Ilixed  Com7nission: 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has 
studied  the  claim  presented  by  the  American  citizen,  Felipe  Scandella, 
and  respectfully  shows  to  the  tribunal : 


The  claim  arises  out  of  the  detention,  certified  to  by  the  order  of 
the  President   of  the  State  of   Bolivar,  of  a  vessel— of  which  the 
claimant    was    charterer— which,    destined   and   carrying  cargo   f 
Ciudad  Bolivar,  had  left  New  York  on  the  30th  of  April,  1902. 


or 


II. 


It  appears  from  the  confession  of  the  claimant  himself  that,  at  the 
time  of  the  arrival  of  the  vessel  at  the  port  of  San  Felix,  C'ludad 
Bolivar  had  been  occupied  bv  forces  rebelling  against  the  constitu- 
tional Government.  The  bark  being  destined  for  this  last  i)()in(,  i 
was  necessary  for  the  preservation  of  public  order,  which  was  not 
lost  sight  of  in  the  judgment  of  the  court,  to  decree  its  d(>l(Milion 
The  means  adopted  bv  the  Government  are  in  strict  acc<)r(  with 
the  principles  of  international  law,  and  are  justihed  ])y  tiie  inton>sts 
of   the  State,  which   must  always  be  given  preference  over  private 

interests.  .    ,       ,,  .       ,        „  ,, 

Saidmeasureis  what  is  called  in  public  law  "a  sovereign  dccicc. 


350  REPORT  OK  ROBERT  C.  MORRIS, 

In  rases  of  civil  rt)iniuotions  or  l"<^reio:ii  war  the  interest  of  its  defense  or  its  secnrity 
may  place  the  State  nnder  the  moral  obligation  of  momentarily  i)re venting  the  free- 
(loiii  of  commercial  business,  of  paralyzing  the  maritime  and  mercantile  movement 
and  even  of  making  use  of  the  vessels  for  the  transport  of  troops  and  armament  or 
other  military  operations.  The  interest  of  the  State,  in  this  case,  is  above  private 
interest,  national  or  foreign,  and  legitimizes  snch  a  mode  of  ncH'^"-  (Calvo,  Inter- 
national Public  and  Private  Law,  paragraph  105.) 

111. 

For  the  considerations  above  stated  the  elaiin  should  be  disaUovved. 

F.  Akroyo  Parejo. 
CLuiACAS,  July  IG,  J!ML 

The   United    States  and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 

of  Felipe  Scandell,  claimant,  y^o   28. 

V. 

The  Republic  of  Venezuela. 
DECISION. 

Opinion  by  Doctor  Paul. 

The  Comruission  disallows  the  claims. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United   States  of  America  on   behalf  1 

of  Felipe  Scandella,  claimant,  [  -^^^  gs. 

v.  I        *      ' 

The  Republic  of  Venezuela.  J 

Doctor  Paul,  Comndssloner ; 

This  claim  is  based  on  the  fact  of  the  detention  of  the  bark  Harry 
Troop  on  her  arrival  at  the  port  of  San  Felix  on  her  way  to  Ciiidad 
Bolivar,  by  order  of  General  Julio  Sarria  Hurtado,  constitutional 
president  of  the  State  of  Bolivar.  General  Sarria's  reason  for  detain- 
ing the  vessel  was  that  the  city  of  Bolivar  was  occupied  by  revolu- 
tionary forces. 

The  claimant,  who  appears  to  be  the  vessel's  freighter,  claims  from 
the  Government  of  Venezuela  the  payment  of  §8,000  for  damages 
caused  to  his  business  and  for  having  his  health  impaired,  through 
the  detention  for  three  months  at  the  unhealthy  port  of  San  Felix,  and 
the  delay  for  seventy-eight  days  in  Ciudad  Bolivar,  as  only  after  that 
time  the  English  man-of-war  ^Phantom  could  convoy  the  bark  ILrrry 
Troop  out  to  sea. 

Neither  the  memorial  nor  the  evidence  show  that  the  claimant  has 
sustained  anv  damages  as  freighter  of  said  vessel,  nor  does  he  claim  any 
indemnity  for  damages  he  might  have  to  be  responsible  for  to  the 
owner  of  the  vessel  for  the  delay.     He  only  claims: 


REPORT  OF  ROBERT  0.  MORRIS.  351 

1.  Losses  sustained  by  not  having  been  able  to  ship  on  the  Harry  Troop  at 

Ciudad  BoUvar  the  engaged  cargo,  because  the  commander  of  the  Phantoui 

did  not  wish  to  Avait  for  the  cargo  to  be  put  on  board §4,  600 

2.  Damages  for  five  and  a  half  months,  personal  detention,  and  consequent 

loss  of  time  and  business 3,  300 

3.  For  physician's  fees  and  medicines 100 

S,  000 

From  the  examination  of  the  three  items  it  appears  that  the  iirst  is 
iuidoubtedl_y  unjustified,  not -being  possible  to  make  the  Government 
of  Venezuehi  responsible  for  the  inconveniences  met  by  Scandella  at 
Ciudad  Bolivar  in  loading  the  Harry  Troop^  that  city  being-  occui)ied 
l)y  the  insurgents,  and  being  also  the  principal  cause  of  Scandella's 
failure  to  put  the  freight  on  board  the  said  vessel,  the  resolution  of 
the  commander  of  the  Phantom  not  to  wait  for  the  loading. 

The  second  item  is  also  inadmissible,  not  having  been  proven,  or 
even  alleged,  that  the  detention  ordered  b}'  General  Sarria  referred  to 
the  person  of  Scandella.  That  officer  detained  the  Harry  Troop  for 
reasons  judged  of  moment,  on  account  of  the  revolutionarj"  occupation 
of  Ciudad  Bolivar. 

In  case  there  should  exist  any  responsibility  on  the  part  of  the  Gov- 
ernment of  Venezuela  for  said  detention,  it  would  Ijc  for  reason  of  the 
ship's  delay,  and  in  such  case  that  responsibility  could  not  be  for  more 
than  an  equitable  indemnity  for  the  actual  delay  of  the  Harry ^  Trooj)^ 
and  as  Scandella,  as  freighter,  does  not  present  any  claim  for  said 
delay,  for  reasons  known  to  himself,  and  as  Messrs.  Thorbourn  &  Co., 
English  subjects  and  owners  of  the  vessel,  have  presented  a  claimto 
the  Anglo-Venezuelan  Mixed  Claims  Commission,  there  only  remains 
the  mere  personal  detention  of  the  claimant,  Scandella,  at  the  port  of 
San  Felix. 

It  is  not  proven  that  Scandella  was  forbidden  to  go  to  Ciudad  Boli- 
var, the  place  of  his  residence,  during  the  three  months  stay  on  board 
the  Harry  I'rooj)  as  a  passenger,  he  not  being  the  captain  nor  psirt  of 
the  crew  of  the  ship.  He  could  have  found  means  to  go  to  Ciudad 
Bolivar  during  the  period  of  three  months,  even  in  a  rowboat,  as  it 
appears  he  did  in  the  end,  according  to  his  own  statement.  The 
troubles  he  naturally  had  to  have  upon  his  arrival  at  Ciudad  Bolivar 
on  account  of  the  detention  of  tlic  vessel  in  which  he  was  a  passenger 
is  an  incident  for  which  the  Government  of  Venezuela  could  not  1)0 
made  responsi})le,  not  liaving  been  the  cause  of  said  troubles  in  a  direct 
and  special  way  to  Scandella  personally,  but  were  th(>  conse(]ueiices  of 
the  suspension  of  regular  communication  witli  a  town  that  had  assumed 
a  revolutionary  and  hostile  attitude. 

General  Sarria  gave  no  orders  to  prevent  Scandella  from  contniuing 
his  journey,  and  he  could  have  efi'ected  it  cither  by  the  river  or  over- 
land. The  same  judgment  could  be  applied  to  the  (>xpenses  Scandella 
affirms  to  have  incurred  for  physician's  fees  and  medicines  to  regain 
his  health,  impaired  by  the  unhealthy  climate  of  San  Felix. 

For  the  alcove  stated  reasons  it  is  my  opinion  that  this  clami  must 
be  disallowed. 


352  REPOKT  OF  EGBERT  C.  MOKRIS. 

The  United  States  iiiui  Venezuelan  ClainiH  Commission,  sitting  at 
Caracas,  Venezuela. 

DECISION. 


The  United   States  of  America  on   keitaef 
of  Felipe  Scandella,  claimant, 

■V. 

The  Repubi^ic  of  Venezuela. 


rNo.  28. 


The  alcove  entitled  case  is  hereb}"  disallowed, 

William  E.  Bainbridge, 

CoDinH'ss/o/wr  o?)  thejjart  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Coiumissioner  on  the  part  of  Venezuela. 
Attest  to  decision: 

Harry  Bouge,  President. 
Attest: 

Rudolf  Dolge, 
Secretar^y  on  the  part  of  the  United  States  of  America. 

J.  Padron  Uztariz, 
Secretary  on  the  part  of  Venezuela. 
Delivered  September  11,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

aiy  17,  1903,  l^etween  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United   States  of  America  on  behalf 
of  William  H.  Phelps,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  29. 


The  memorial  in  this  case  was  prepared  by  the  claimant,  under  the 
direction  of  the  agent  of  the  United  States,  and  submitted  to  the  Com- 
mission with  an  oral  argument  in  support  thereof.  The  claim  was 
admitted  in  principle  and  the  Commission  made  an  award,  as  appears 
b}'  its  decision  hereto  annexed. 

[TraiiHlation.] 

William  H.  Phelps  ) 

V.  y  Claim  No.  29. 

Venezuela.         ) 

ANSWER. 

Sbnorahle  members  of  the  Venezuelan- American  Mixed  Cormnission. 

The  undersigned  agent  of  the  Government  of  Venezuela  has  studied 
the  claim  presented  by  the  American  citizen  William  H.  Phelps, 
arising  out  of  the  loss  of  three  mules,  which  were  his  property,  taken 
by  forces  of  the  Government  under  command  of  Gen,  Calixto  Esca- 
lante  in  the  month  of  April,  1902,  and  respectfully  shows  to  the 
tribunal: 


REPORT  OF  ROBERT  C.  MORRIS.  353 

I. 

As  the  claimant  exhibits  a  proof  signed  b}^  the  chief  of  the  Govern- 
ment forces,  the  undersigned,  in  his  representative  capacit}^,  accepts 
in  principle  the  claim,  and  leaves  its  amount  to  be  equitably  fixed  by 
the  tribunal. 

Caracas,  July  10,  1903. 

F.  Arroyo  Parejo. 

The  United  States   and  Venezuelan    Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 

of  William  H.  Phelps,  claimant,  [^     ^^ 

The  Republic  of  Venezuela. 

AWARD. 

By  the  Commission: 

The  Commission  awards  in  favor  of  the  claimant  the  sum  of  $315.25 
United  States  gold. 

The  United   States  and  Venezuelan  Claims   Commission,   sitting  at 
Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  William  H.  Phelps,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  29. 


The  Commission: 

William  H.  Phelps  claims  the  value  of  a  saddle  nuile  atid  two 
work  mules  which  Gen.  Calixto  Escalante,  commander  of  the  Govern- 
ment troops,  took  from  the  claimant  on  the  20th  day  of  April,  1902, 
in  the  city  of  San  Antonio  de  Maturin,  for  the  necessities  of  the  mili- 
tary operations. 

The  value  of  these  animals,  as  estal)lished  by  the  petitioner,  amounts 
to  §400  (United  States  gold),  viz,  $200  for  the  saddle  mule,  and  $100 
each  for  the  work  mvdes. 

The  honorable  agent  of  the  Government  of  Venezuela,  in  his  answer, 
accepts  the  justice  of  the  claim  in  principle,  but,  as  the  valuation  of 
the  animals  was  not  fixed  by  agreement  between  the  owner  and  (icn- 
eral  Escalante,  leaves  to  the  C\)mmission  the  duty  of  establishing  an 
equitable  amount. 

The  Connuission,  therefore,  makes  an  award  in  favor  of  William 
H.  Phelps  for  the  sum  of  §;^/iO,  with  interest  from  the  20th  of  April, 
1902,  to  the  31st  of  December,  1903,  being  the  anticii)ated  date  of  the 
final  award  by  this  Connuission,  at  the  rate  of  3  per  cent  per  aiuiuni, 
making  in  all  the  sum  of  $315.25  United  States  gold. 
S.  Doc.  317,  58-2 23 


354  Kp:roRT  of  Robert  c.  morris. 

The    United    States   and   Venezuelan   Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of 
William  II.  Phelps,  claimant,  against  the  Republic  of  Venezuela, 
No.  2!»,  the  sum  of  three  hundred  fifteen  and  2.5/100  dollars  ($31.5.2.5) 
in  United  States  gold  coin  is  hereby  awarded  in  favor  of  the  claimant, 
which  sum  shall  be  paid  b}^  the  Government  of  Venezuela  to  the 
Government  of  the  United  States  of  America  in  accordance  with  the 
provisions  of  the  Convention  under  which  this  award  is  made. 

William  E.  Baim bridge, 
Comtniss'ioner  on  the  jx^^'t  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Cominissioner  on  the  part  of  Venezuela. 
Attest  to  award 

Harry  Barge,  President. 
Attest: 

Rudolf  Dolge, 
Secretary  on  the  jMrt  of  the  United  States  of  America. 

J.  Padron  Uztariz, 
Secretary  on  the  part  of  Venezxiela. 

Delivered  August  1,  1903. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 

of  Joseph  Anderson,  jr.,  claimant,  !  ^     orv 

The  Republic  of  Venezuela.  I 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  Joseph  Ander- 
son, jr.,  to  recover  against  the  Government  of  Venezuela  the  principal 
sum  of  14,000  pesos  and  the  sum  of  23,520  pesos,  as  interest,  or  a  full 
amount  of  37,520  pesos  on  five  bonds  issued  by  the  Republic  of 
Venezuela  bearing  date  the  21st  da}^  of  December,  1846. 

I. 

statement  of  facts. 

The  claimant,  Mr.  Anderson,  is  a  natural-born  citizen  of  the  United 
States,  resident  in  Porto  Rico,  where  he  is  engaged  in  the  practice  of 
law.  He  is  the  holder  of  the  above-mentioned  bonds  by  virtue  of  a 
special  power  of  attorne}^  and  bill  of  sale  given  to  him  for  a  valuable 
consideration,  b}"  Fernando  Hernandez  y  Miguens,  who  acquired  his 
interest  and  right  to  the  said  bonds  from  his  grandparents  on  his 
father's  side,  Domingo  Hernandez  and  Maria  Simana  Garcia,  who 
were  residents  of  Venezuela  and  owned  real  estate  there  at  the  time  of 


REPORT  OF  ROBERT  C.  MORRIS.  355 

the  issuance  of  said  bonds.  Domingo  Hernandez  was  a  Spanish  subject 
who  was  obliged  to  emigrate  from  Venezuela  at  the  time  of  the  war 
for  independence.  The  bonds  were  issued  in  payment  of  certain 
properties  belonging  to  his  wife,  Maria  Simana  Garcia,  which  were 
confiscated  by  the  Government.  Upon  their  removal  from  Venezuela, 
the  grandparents  of  Fernando  Hernandez  y  Miguens  settled  in  Porto 
Rico,  where  they  died,  and  the  bonds  upon  which  payment  is  claimed 
fell  to  their  grandson. 

H. 

The  claimant  is  not  precluded  from  asserting  his  claim  either  hy  the 
convention  v)hich  created  the  commission  of  1867-68  or  ly  the  convention 
which  established  the  rehearing  commission  of  1890. 

The  commission  of  1867-68  did  not  have  jurisdiction  or  power  to 
hear  and  determine  this  case,  for  at  that  time  the  holders  of  the  bonds 
were  Spanish  subjects.  Neither  could  the  claim  have  been  brought 
before  the  commission  of  1890,  inasmuch  as  that  was  simply  a  commis- 
sion for  the  rehearing  of  claims  which  were  proper  to  be  brought 
before  the  commission  of  1867-68. 

HI. 

The  present  Commission  has  full  po\ccr  to  hear  and  determine  this 
case. 

The  claim  is  now  owned  by  a  citizen  of  the  United  States  and  the 
protocol  provides  that — 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  which  have  not  been  settled  by  diplomatic  agreement  or  by  arbitration 
between  the  two  Governments  *  *  *  shall  be  examined  and  decided  by  a  Mixed 
Commission  which  shall  sit  at  Caracas    *    *    *. 

Upon  this  power  there  is  no  limitation  or  restriction  whatsoever. 
If  a  claim  exists  in  favor  of  a  citizen  of  the  United  States  this  Com- 
mission has  the  power  to  consider  and  determine  it,  and  hence,  neces- 
sarily, to  consider  and  determine  whether  there  is  or  is  not  a  valid 
claim. 

These  bonds  have  no  date  of  maturit}',  consequently  it  can  not  be 
contended  that  they  should  have  been  j)rcsented  at  some  earlier  time 
to  the  Republic  of  Venezuela.  There  is  a  default  in  the  interest  and 
the  bonds  constitute,  as  to  their  face  and  interest,  a  conceded  obliga- 
tion on  the  part  of  the  Republic  of  Venezuela. 

IV. 

There  can  he  no  ohjection  to  the  jurisdiction  of  this  CoinmiMion 
because  the  claim  is  based  upon  bonds  issued  by  the  liepuhlic  of 
Venezuela. 

It  was  at  one  time  contended  before  some  of  the  early  arbitration 
commissions  that  bonds  or  other  similar  obligations  issued  by  a  gov- 
ernment were  not  proper  matters  of  international  intervention  nor 
claims  proper  to  l)e  considered  by  such  arbitration  commission,  but  the 
rule  regarding  all  such  questions  has  been  since  clearly  settled  to  the 


356  REPORT  OF  ROBERT  C.   MORRIS. 

oontrarv,  especially  since  the  celebrated  circular  issued  b}^  Ijord  Palm- 
erston,  in  IS-iS,  to  the  British  rc])resentativcs  at  forcio-n  courts  detin- 
mg  the  liuiits  of  intervention  to  include  all  claims  for  moneys  due 
English  subjects. 

Any  doubt  upon  this  subject,  so  far  as  concerns  the  claim  in  this 
case  and  the  powers  of  the  present  Connnission,  is  moreover  removed 
by  the  express  language  of  the  protocol  above  quoted. 

V. 

An  award  should  he  made  in  favor  of  the  claimant  for  the  full  amount 
claimed,  with  interest. 

The  claimant  in  this  case  being  an  American  citizen  is  not  precluded 
bv  an}"  bar  whatsoever  to  the  claim  asserted  and  should  receive  ah 
award  in  his  favor  for  the  amount  of  the  bonds  owned  by  him,  with 
interest  from  the  date  of  issuance  by  the  Venezuelan  Government. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

Joseph  Anderson  ) 

V.  >  Claim  No.  30. 

Venezuela.        j 

Jlonorahle  Memhers  of  the  Venezuelan -Americcm  Mixed  Commission  : 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has  studied 
the  claim  presented  by  the  American  citizen,  Joseph  Anderson,  jr.,  for 
the  value  of  five  bonds  issued  by  the  Republic  of  Venezuela  in  the 
year  1846,  and  respectfully  informs  the  tribunal: 

I. 

The  present  claim  can  not  be  considered  by  this  honorable  Commis- 
sion. In  accordance  with  the  terms  of  the  protocol  signed  at  Wash- 
ington by  the  representatives  of  both  Governments,  only  the  claims 
owned  by  American  citizens  will  be  examined  and  decided  by  the  Mixed 
Commission  which  the  said  convention  establishes.  Now,  then,  at  the 
date  of  said  convention  the  claim  in  question  did  not  belong  to  Mr. 
Anderson,  who  had  it  assigned  to  him  afterwards  in  order  to  realize 
on  the  speculation.  It  appears  from  the  very  documents  put  in  evi- 
dence by  the  claimant  that  the  assignment  of  the  bonds  is  fictitious  and 
made  for  the  sole  object  of  recovering  on  them. 

The  interpretation  which  the  honorable  agent  of  the  United  States 
endeavors  to  give  to  said  article  of  the  protocol  would,  on  account  of 
its  broadness,  be  the  surest  means  whereby  citizens  of  the  entire  earth, 
Venezuelans  included,  could  submit  their  claims  to  this  Commission. 
It  would  suffice  to  accomplish  this  to  assign  them  by  virtue  of  a  con- 
tract similar  to  that  entered  into  between  the  claimant  and  Hernandez 
Niquens  to  any  American  lawyer. 

Besides,  the  fact  is  evident  that  the  claimant  is  not  pursuing  a  right 
of  his  own,  but  is  simply  acting  in  the  capacity  of  an  attorney  and  it 
is  not  proved  that  his  principal  is  an  American  citizen. 


REPOKT  OF  ROBERT  C.  MORRIS.  857 

II. 

Nor  does  the  undersigned  consider  that  claims,  arising  out  of  simi- 
lar transactions  to  those  which  support  tlie  present  one — that  is  to  say 
from  bonds  or  other  obligations  issued  by  a  State,  can  be  submitted  to 
this  Commission. 

In  the  majority  of  cases  the  holders  of  such  obligations  have 
acquired  them  voluntarily  and  spontaneously,  with  the  object  of  real- 
izing on  them  by  way  of  speculation,  and  since  they  are  ordinarily 
made  payable  to  bearer,  if  their  recovery  could  give  rise  to  interna- 
tional action  it  would  be  a  source  of  constant  disturbance  for  the  State 
that  issued  them. 

III. 

The  honorable  agent  of  the  United  States  asserts  that  the  question 
whether  such  obligations  can  be  made  the  subject  of  international 
intervention  has  been  settled  in  the  affirmative,  and  he  cites  in  sup- 
port thereof  the  celebrated  circular  of  Lord  Palmerston  to  the  British 
representatives,  dated  January,  1848.  The  question  in  fact  is  resolved 
by  international  law  but  not  in  the  sense  which  the  honorable  Ameri- 
can agent  alleges.  Here  is  what  Lord  Palmerston  says  in  the  docu- 
ment cited: 

To  intrust  one's  money  to  foreign  governments  is  to  carry  on  a  speculation;  to  con- 
tribute to  a  loan  negotiated  by  a  foreign  government;  to  buy  in  the  exchange  for- 
eign obligations  is  a  commercial  transaction  like  any  other;  the  risk  which  is  inherent 
in  all  transactions  of  this  sort  is  also  inseparable  from  subscriptions  to  government 
loans.  The  creditors  should  not  lose  siglit  of  the  contingency  of  a  failure  and  should 
l)lame  no  one  but  themselves  if  they  lose  their  money.  (See  the  Revue  de  Droit 
International  et  de  Legislation  Compar^e,  T  XIX,  1882,  p.  386.) 

A  like  opinion  has  been  firml}^  sustained  by  Kolin-Jacquemyns: 

The  fact  that  a  state  [says  this  author]  obligates  itself  in  the  contract  of  debts  is  an 
act  of  sovereignty;  the  act  of  paying  tho.se  debts  is  another  act  of  sovereignty  i)er- 
fectly  distinct  from  the  first.  The  proof  that  this  is  so  is  that,  in  our  constitutional 
countries  the  payment  of  the  interests  and  the  extinguishment  of  tiie  cai)ital  of  the 
debt  is  not  accomplished  each  year  except  by  virtue  of  an  act  of  the  legislative  jiower 
in  the  fullness  of  its  independence.  No  doubt  this  act  does  not  create  the  debt  but 
it  does  sanction  it.  If  this  is  so  the  settlement  of  the  debts  of  a  state  can  not  give 
rise,  at  lea.stas  a  general  proposition,  to  foreign  intervention.  Besides,  foreigners  can 
not  well  complain  of  a  condition  which  is  common  to  them  and  the  nationals  of  the 
debtor  state,  and  against  whicli  they  did  not  have  from  the  beginiiiug  any  other 
guaranty  than  the  good  faith  of  the  latter  and  its  evident  interest  in  not  injuring  its 
credit.  Recourse  can  not  therefore  be  had  to  intervention  except  in  ca.«e  in  the  set- 
tlement of  the  debt  certain  creditors  have  been  systematically  favored  to  the  injury 
of  the  others  and  amongst  these  last  there  are  the  nationals  of  a  i)arti(!ular  State. 

IV. 

A  stronger  reason  than  all  those  expressed  is  that  the  d(d)t  has  boon 
barred. 
Therefore  it  ought  to  be  disallowed. 
Caracas,  July  li>,  1908. 

F.  Arroyo  Pakkjo. 


358  REPORT  OF  ROBERT  C.  MORRIS. 

The  United   States  and    Venezuelan   Claims  Connnission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 

of  floseph  Anderson,  jr.,  claimant,  I  ^^     oa 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  dismisses  the  claim,  without  prejudice,  for  want  of 
jurisdiction. 

The  United   States  and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  eloseph  Anderson,  jr.,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  30. 


Bainbridge,  Commissioner. 

xYt  the  time  of  the  Venezuelan  war  for  independence,  Domingo 
Hernandez  and  Maria  Simana  Garcia,  Spanish  subjects,  were  com- 
pelled to  emigrate  from  Venezuela  and  their  properties  therein  were 
confiscated  b}^  the  Government.  In  payment  for  the  property  thus 
taken  the  Government  of  Venezuela  on  December  21,  1846,  issued  to 
these  parties  several  ])onds,  bearing  interest  at  3  per  cent  per  annum 
from  June  22,  1847.  The  parties  named  removed  to  the  city  of 
Humacao,  island  of  Porto  Rico,  where  the}^  died,  leaving  part  of  said 
bonds  to  Fernando  Hernandez  y  Garcia,  who  died  in  February,  1896, 
leaving  said  bonds  to  his  son  Fernando  Hei'nandez  y  Miguens.  On 
the  18th  of  June,  1903,  the  latter  conferred  "■  a  general  and  special 
power  of  attorney,  drawn  as  required  by  law,  in  favor  of  Mr.  Joseph 
Anderson,  jr.,  resident  of  Forto  Rico,  citizen  of  the  United  States  of 
America,  and  a  law}  er  by  profession,  so  that  he  might,  in  the  name 
and  representative  of  the  appearing  part}^,  and  as  owner  of  said  five 
bonds,  which  he  cedes  and  transfers  to  him  in  the  legal  way,  so  that 
he  may  claim  the  payment  of  the  same,  including  the  corresponding 
interest  l)efore  the  Commission  named  to  that  effect." 

The  United  States  now  presents  to  the  Conmiission  on  behalf  of 
Joseph  Anderson,  jr.,  a  claim,  based  on  said  five  bonds,  amounting  to 
37,250  pesos,  principal  and  interest. 

The  convention  constituting  this  Commission  signed  at  Washington 
on  the  17th  of  February,  1903,  provides: 

All  claims  owned  by  citizens  of  the  United  States  against  the  Repnblic  of  Vene- 
zuela   *     *     *     shall  be  examined  and  decided  by  a  mixed  commission,  etc. 

Claims  owned  when  ?  Clearly  the  object  of  the  convention  was  to 
provide  a  method  of  settlement  by  arbitration  of  claims  against  the 
Republic  of  Venezuela  owned  by  citizens  of  the  United  States  at  the 
time  of  its  negotiation.  No  other  claims  could  have  been  within  the 
contemplation  of  the  high  contracting  parties,  and  jurisdiction  of  no 
other  claims  is  conferred  by  the  convention  upon  the  Commission. 


REPORT  OF  ROBERT  C.  MORRIS.  359 

It  is  neither  proved  nor  even  alleged  that  this  claim  was  owned  by 
a  citizen  of  the  United  States  on  or  prior  to  February  17,  1903.  The 
claimant  Anderson  did  not  become  the  owner  of  it  until  June  18, 1903, 
if  indeed,  from  the  evidence  presented  here  he  can  rightly  be  said  to 
be  the  owner  at  all. 

The  claim  is  therefore  dismissed,  without  prejudice,  for  want  of 
jurisdiction. 

The  United  States  and  Venezuelan    Claims  Commission,    sitting  at 

Caracas,  Venezuela. 

decision. 

The  United  States  of  America,  on  behalf 

of  Joseph  Anderson,  jr.,  claimant,  I  ^     orv 

The  Repcblic  of  Venezuela. 

The  above-entitled  claim  is  hereb}^  dismissed,  without  prejudice,  for 
want  of  jurisdiction. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  de  J.  Paul, 
Commissioner  on  the  part  of  Yenezuela. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 
Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 
Secretary  on  the  part  of  the  United  States  of  America. 
Delivered  August  25,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America,  on  behalf 
of  the  Caracas  and  La  Guayra  Cable  Com- 
pany, claimant,  b}'  Theodore  W.  Tyrcr,  its 
president, 

V. 

The  Republic  of  Venezup^la. 


No.  31. 


BBIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  the  Caracas  and 
La  Guayra  Cable  Company,  by  Theodore  W.  Tyi-er,  its  president,  for 
the  sum  of  $286,600.  The  claimant,  the  Caracas  and  La  (JuayraC-able 
Company,  is  a  corporation  duly  organized  and  incorporated  under  the 
laws  of  the  State  of  Virginia. 


360  REPORT  OF  ROBERT  C.  MORRIS. 

The  claim  arises  from  the  acts  of  the  Venezuelan  Government  during 
the  years  1SS7  to  1S1H>,  when  the  claimant  was  in  possession  of  a  con- 
cession for  the  construction  of  a  g-ravity  cable  road  connecting-  the 
cities  of  Caracas  and  La  Guaira.  The  claimant  corporation,  within 
the  time  lixed  t\)r  the  commencement  of  construction  work,  l)eoau 
operations  and  imported  fi'om  the  United  States  tools  and  materials. 
It  enoag-ed  workmen  and  (>ngineers  and  established  ollices  at  consider- 
able expense.  After  the  work  had  progressed  for  a  period  of  a])out 
two  weeks,  the  Government  of  Venezuela  ordered  the  claimant  to  cease 
operations  upon  the  ground  that  the  claimant  intended  to  grade  the 
roadbed  through  an  ancient  cemetery  in  the  line  of  the  road  shown  by 
approved  plans  thereof.  The  issuance  of  this  order  violated  the  provi- 
sions of  the  contract  which  provided  that  all  controversies  should  be 
referred  to  competent  courts  of  the  Government.  The  claimant 
endeavored  to  have  the  order  vacated  when  it  appeared  that  it  was 
issued  for  the  ostensible  reason  that  the  cemetery  contained  the  remains 
of  persons  who  had  died  of  cholera  in  1855,  and  that  the  excavation  of 
this  land  might  endanger  the  public  health.  On  this  point  a  written 
opinion  Avas  submitted  by  the  national  board  of  health,  by  which  it 
was  shown  that  there  would  be  no  danger  from  such  excavation. 

It  had  been  agreed  by  the  President  of  Venezuela  with  the  repre- 
sentative of  the  corporation  previously  to  the  report  of  the  national 
])oard  of  health  that  if  this  board  should  make  a  satisfactory  report 
the  work  might  then  progress.  Subsequently,  and  after  the  report, 
the  President  receded  from  this  agreement,  making  as  an  excuse  that 
many  persons  still  feared  that  the  excavation  might  cause  an  epidemic, 
and  insisted  that  the  city  board  of  health  should  make  a  report.  The 
city  board  of  health,  after  investigating  the  matter,  made  a  report 
directly  opposite  to  that  which  had  been  made  by  the  national  board 
of  health.  The  President  of  Venezuela  then  took,  the  stand  that  he 
did  not  care  to  decide  between  the  two  reports  and  that  therefore  the 
work  must  cease.  The  claimant  called  the  attention  of  the  President 
of  Venezuela  to  the  fact  that  on  the  opposite  side  of  the  street  along 
which  the  railroad  was  to  run  there  had  been  constructed  a  hospital 
Imilding  for  a  distance  of  two  blocks  and  that  the  ground  upon  which 
it  was  located  had  been  excavated  through  the  old  burying  ground  and 
the  excavation  thrown  into  the  ravine  in  the  same  manner  as  the 
company  had  proposed  to  do. 

Finally,  in  1890,  the  Venezuelan  Government  issued  a  modification 
of  the  original  order  stopping  the  work,  whereby  the  claimant  was 
directed  to  change  the  proposed  route.  The  claimant  thereupon 
employed  competent  engineers  who,  after  careful  investigation, 
reported  that  a  change  of  the  route  rendered  the  project  impracticable. 
Although  the  claimant  used  every  possible  effort  to  carry  out  the 
terms  of  the  concession  as  agreed  to  with  the  Venezuelan  Government, 
it  was  impossible  to  do  so,  and  the  result  was  that  the  undertaking  had 
to  be  given  up  with  much  loss  of  money  expended  and  much  damage 
from  the  unwarranted  interference  b}^  the  Government. 

We  submit  that  the  favorable  report  of  the  national  board  of  health, 
t(^  the  effect  that  there  would  be  no  injury  to  the  pu])lic  health,  and 
moreover,  that  on  the  same  piece  of  ground  where  the  company  was 
to  construct  its  line  a  hospital  had  been  constructed,  where  it  is  to  be 
presumed  the  health  of  the  patients  was  the  first  consideration,  were 
sufficient  facts  to  justify  the  presumption  that  no  injury  could  result 


REPORT  OF  ROBERT  C,  MORRIS.  361 

from  the  excavation.  We  also  submit  that  the  report  of  skilled  engi- 
neers that  the  project  could  not  be  carried  out  from  an}^  other  point 
should  have  been  taken  into  consideration  by  the  Government  of  Ven- 
ezuela and  that  the  claimant  should  have  been  allowed  to  continue  its 
work  as  originally  designed  in  accordance  with  its  approved  plans.  In 
view  of  the  large  amount  of  money  expended  and  the  value  of  this 
concession,  we  feel  that  the  amount  of  this  claim  is  fair  and  moderate 
and  that  an  award  should  be  made  for  its  full  amount. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

The  Caracas  and  La  Guayra  Cable  Company,  ) 

V.  VNo.  31. 

Venezuela.  ) 

ANSWER. 

Ilonorahle  memhers  of  the  Venezuelan -American  Mixed  Conim.isnon: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  Caracas  and  La 
Guayra  Cable  Company,  arising  out  of  the  alleged  l)reach  on  the  part 
of  Venezuela,  of  a  contract  made  and  entered  into  })y  the  claimant  and 
Gen.  Guzman  Blanco,  in  the  name  of  the  Repu])lic,  on  December  2, 
1887;  and  respectfully  shows  to  the  tribunal: 

As  is  seen  by  the  report  made  at  the  instance  of  the  undersigned, 
by  the  office  of  the  minister  of  public  works,  the  contract  made 
between  the  company  claimant  and  the  Government  had  in  view  the 
construction  of  a  cable  l)etween  the  cities  of  Caracas  and  I^a  Guayra, 
which  was  to  have  been  accomplished  by  means  of  a  tunnel  through 
the  mountains  in  a  straight  line  between  the  two  cities.  Tiie  con- 
tractor covenanted  to  begin  the  work  within  tiie  space  of  nine  months, 
reckoned  from  the  date  when  the  concession  should  ])e  ratified  by 
Congress.  After  various  extensions  conceded  by  the  Government 
with  the  object  of  facilitating  the  execution  of  the  work,  the  con- 
tractor gave  notice  on  the  Oth  of  August,  181>0,that  he  had  connnenccd 
the  work.  On  the  3<»th  of  the  same  month  the  Government,  in  view 
of  the  fact  that  the  phin  of  the  line  was  projected  over  tiic  lot  where, 
in  1855,  the  victims  of  the  cholera  epidemic  had  l)een  buried,  ordered 
the  suspension  of  the  work  until  a  medical  commission  could  be  con- 
sulted which  would  give  an  opinion  as  to  the  advisability  ol'  its 
continuation. 

There  is  no  doubt,  but  the  Government,  in  consideration  of  the 
danger,  proximate  or  remote,  which  might  result  to  thc^  public 
health  from  the  excavations,  was  bound  to  proceed  as  it  did.  The  con- 
tractor fully  recognized  this  authority,  and  as  the  medical  report, 
which  was  in  fact  given,  opposed  the  continual  ion  of  the  work,  Mr. 
Tyrer  informed  the  Venezuelan  authorities  that,  not  Avishing  to  cause 
any  injuries  on  account  of  the  causes  mentioned,  he  would  prcder  to 
lose  the  woik  done  and  lay  out  a  new  line;  over  to  the  east  or  to  the  west 
of  that  already  planned,  reserving  the  right  to  choose  the  place  which 
was  most  convenient  to  the  ])u))lic  interests  and  those  of  the  enterprise 
which  he  represented,  for  which  he  would  present  new  plans. 


362  REPORT  OF  ROBERT  C.  MORRIS. 

The  Govornmont  liavino-  ao:reed  to  this  ])roposition,  the  claimants 
said  that  they  would  submit  the  new  phin  to  the  board  of  directors 
resident  in  the  United  States. 

No  other  action  has  been  taken  since  that  date  by  the  company,  and, 
considering;-  the  abandonment  for  such  a  long-  time  of  the  work  begun, 
the  Government  justly  supposed  that  it  had  rci\ounced  the  concession. 

It  now  appears  from  the  brief  of  the  honorable  agent  of  the  United 
States  that  tlie  engineers  consulted  concerning  the  new  plan  of  the 
line,  considered  that  it  would  not  be  possible  to  complete  it  in  the 
manner  last  proposed  b^'  the  same  contractor. 

It  must  be  remembered  that  such  report  was  never  communicated 
to  the  Government  of  Venezuela  which,  up  to  the  present,  was  igno- 
rant of  this  circumstance.  On  the  other  hand,  it  is  not  conceivable 
that  the  construction  company  would  have  omitted  to  take  any  action, 
going  to  the  extreme  that  when  the  Venezuelan  Government,  consider- 
ing- said  concession  abandoned,  contracted  on  the  29th  of  April,  1893, 
with  Mr.  Frank  B.  Merrill  for  the  execution  of  a  similar  work,  it  did 
not  take  any  steps  to  inforce  the  rights  which  it  might  have,  and  made 
no  protest  to  that  end. 

The  undersigned  produces  in  two  pamphlets  the  record  on  file  in  the 
office  of  the  minister  of  public  works  respecting-  the  concession  which 
gives  rise  to  this  claim.  From  his  acts  and  from  the  confession  itself 
of  the  claimant,  Mr.  Tyrer,  it  is  seen: 

(1)  That  the  Government  of  Venezuela  exercised  a  perfect  right  and 
pursued  a  course  which  the  duty  of  safeguarding  the  public  health 
imposed  upon  it,  when  it  ordered  the  suspension  of  the  work; 

(2)  That  the  contractor  of  the  enterprise,  Mr.  Tyrer,  of  his  own 
free  will,  proposed  the  modification  of  the  plan  of  the  line; 

(3)  That  the  contractor,  as  is  shown  by  the  report  of  the  engineers 
named  by  the  Venezuelan  Government,  which  appears  in  the  second 
pamphlet  of  the  record  produced,  never  fulfilled  the  obligation  of  pre- 
senting- to  the  minister  the  plans  of  the  work; 

(4)  That  it  is  not  proved  that  he  communicated  to  the  Venezuelan 
Government  the  report  of  the  engineers  upon  which  his  claim  is 
founded;  and 

(5)  That  the  omission  of  all  action,  with  a  view  of  continuing  the 
work  for  a  long  period  of  time,  and  his  absolute  silence  when  the 
Merrill  concession  was  granted,  prove  the  voluntary  a))andonment  of 
his  own. 

It  not  having  been  demonstrated,  therefore,  that  the  Venezuelan 
Government  has  violated  any  of  the  articles  of  the  contract  made  in 
1887,  its  liability  can  not  be  sustained. 

F.  Arroyo  Parejo. 

Caracas,  Jidij  IS,  190,i. 


REPORT  OF  ROBERT  C.  MORRIS.  363 

The  United  States  and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ^ 
of  the  Caracas  and  La  Guayra  Cable  Com- 
pany, claimant,  ^  No.  31. 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  by  Bainbridge,  Commissioner. 
The  Commission  disallows  the  claim. 
September  8,  1903. 

The   United  States   and   Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  the  Caracas  and  La  Guayra  Cable  Com- 
pany, claimant, 

V. 

The  Republic  of  Venezuela. 


r  No.  31. 


Bainbridge,  Commissioner : 

On  the  2d  day  of  December,  1887,  a  contract  was  signed  in  Paris  by 
and  between  Guzman  Blanco,  formerly  President  of  Venezuela  and  at 
the  time  Venezuelan  minister  to  France,  and  T.  W.  Tyrer,  attorney 
in  fact  of  the  Caracas  and  La  Guayra  Cable  Company.  The  contract 
thus  signed,  subject  to  ratification  by  the  Government  of  Venezuela, 
granted  to  the  corporation  named,  inter  alia,  the  following: 

(1)  The  exclusive  right  to  construct,  maintain,  and  operate  a  cable 
road  between  the  cities  of  Caracas  and  La  Guayra  for  the  term  of 
ninety-nine  years. 

(2)  The  right  to  construct  a  tunnel  l)etween  Caracas  and  La  Guayra; 
also  a  wagon  road  through  the  said  tunnel. 

(3)  The  right  of  transit  in  the  city  of  Caracas,  passing  through  the 
streets  where  this  may  be  necessary,  for  the  purpose  of  extending  its 
lines  as  far  as  North  avenue  and  Thirteenth  street. 

The  company  was  required  to  begin  the  work  of  constructing  tlie 
cable  road  within  nine  months,  reckoned  from  the  day  on  which  the 
concession  .should  1)0  ratified  \)\  the  Government  of  Venezuela  accoi-d- 
ing  to  law  and  thus  be  rend(n-ed  valid;  and  to  linish  the  road  withm 
three  years  from  the  day  on  which  the  work  conunenced. 

The  Caracas  and  La  Guayra  Cable  Company  was  incorporated  under 
the  laws  of  the  State  of  Virginia  on  the  lltli  day  of  May,  ISSS.  On 
May  28,  1888,  T.  \V.  Tyrer  transfcn-rcd  to  said  company  all  the  rights 
and  obligations  under  the  contract,  C.  F.  Nonncnt,  the  secretary  of 
the  company,  receiving  the  transfer  on  its  ])ehalf. 

On  or  about  March  17, 1888,  the  President  of  the  Republic  ot  \  (>ne- 
zuela,  with  the  approval  of  the  Federal  Council,  latitied  in  all  its  parts 
the  contract  sigiu^l  in  Paris  on  December  2,  1887,  between  (J uzinan 
Blanco  and  T.  W.  Tyrer.  The  contract  was  approved  l)y  act  of  Con- 
gress dated  August  iO.  1888. 


3tU  REPORT    OB^    ROBERT    C.   MORRIS. 

Tlio  Govovnniont  o-rantod  the  company  various  oxtonsions  of  time 
for  boiiinnino-  tlie  work.  Avlilch  was  tinally  commoncod  on  Auo-ust  0, 
ISiiO.  Oil  the  latter  date  the  company  addressed  to  the  minister  of 
puhlie  works  the  following  comnmnication: 

1  Translation 

Cakacah,  AuguHt  6,  1S90. 
Citizen  jMinistkk  ov  Piunjc  Works, 

Preseut: 

In  conformity  with  the  requirements  of  the  law  I  had  the  honor  to  inform  you  on 
tiie  1st  instant  "that  the  Caracuis  and  La  Guayra  Cable  Company  would  commence  its 
work  to-dav. 

To  tliat  effect  and  in  accord  with  the  opinions  of  the  engineers  who  have  been 
engaged  in  this  work  the  plan  for  the  preliminary  works  has  V)een  prepared  and  the 
survey  made  of  tlie  lines  which  shall  comprise  the  station  and  the  streets  where  the 
railway  shall  pass,  starting  from  a  line  parallel  to  the  west  end  of  the  hospital 
Vargas  up  to  the  foot  of  the  mountain  where  the  mouth  of  the  tunnel  shall  be 
opened. 

The  station  will  be  located  between  the  prolongation  of  the  Avenida  Norte  and 
North  Second  street  in  conformity  with  article  7  of  our  contract  with  the  National 
Government. 

I  have  the  honor  to  give  this  notice  to  you  in  order  that  you  may  bring  it  to  the 
knowdedge  of  the  citizen  President  of  the  Republic,  so  that  if  he  judges  it  proper  and 
convenient  he  may  give  his  approval  to  our  dispositions. 

With  sentiments  of  esteem,  I  am,  etc. 

(Signed)  T.  W.  Tvker. 

The  company  began  the  work  with  a  force  of  some  65  men.  The 
work  on  the  grading  continued  between  two  ar.d  three  weeks,  when 
the  Government  ordered  it  stopped  on  account  of  the  fact  that  the  line 
and  excavations  extended  through  a  cemetery  in  which  the  victims  of 
the  cholera  epidemic  of  1855  had  been  buried. 

On  August  30,  1890,  the  minister  of  public  works  wrote  the  com- 
pany as  follows: 


"Translation. 


Caracas,  Augnd  .SO,  1890. 

27  and  32. 
T.  W.  Tyrer,  Esq., 

Representative  oj  the  cable  road  companjj 

between  this  city  and  the  Fort  of  La  Guayra: 
The  President  of  the  Republic  has  ordered  me  to  inform  you  that,  in  order  that 
the  cable  road  coinpany  may  not  suffer  damage  by  the  suspension  of  its  work  and 
while  the  question  is  decided  as  to  whether  its  lines  should  or  should  not  be  extended 
to  the  cholera  cemetery,  which  question  is  now  being  subjected  to  a  full  and  careful 
examination,  the  company  may  again  undertake  the  work,  starting  from  the  oppo- 
site ])ank  of  the  stream  north  of  said  cemetery  tow-ard  the  Avila. 

As  soon  as  a  decision  is  reached  as  to  whether  the  land  occupied  by  the  cholera 
cemetery  can  be  used  for  the  work,  the  result  will  be  communicated  to  you. 
Dios  y  Federacion. 

(Signed)  Terkero  Atienza. 

The  question  whether  the  excavations  in  the  cholera  cemetery  would 
endanger  the  public  health  was  submitted  to  the  doctors,  who  as  usual 
disagreed.  The  National  Board  of  Health  reported  that  there  was  abso- 
lutely no  danger  from  having  the  ground  opened,  whereas  the  city 
board  of  health  made  a  report  directly  opposite.  The  President  of 
the  Republic  being  liable  at  any  time  to  need  a  physician,  discreetly 
refused  to  determine  betw^een  the  two  reports. 

On  September  15,  1890,  Mr.  Tyrer,  the  general  superintendent  of 
the  company,  wrote  the  minister  of  public  works  the  following  letter: 


REPORT  OF  ROBERT  C.  MORRIS.  365 

Citizen  Minister  of  Public  AYokks, 

Present: 

T.  W.  Tyrer,  superintendent  general  and  representative  in  Caracas  of  tlie  Caracas 
and  La  Guayra  Cable  Company,  with  due  respect  reports: 

In  accordance  with  the  contract  made  on  the  2d  day  of  December,  1887,  with  the 
National  Government  for  the  opening  of  a  tunnel  cable  road  between  Caracas  and  La 
Guayra,  and  authorized  by  the  extensions  given  by  the  Government  of  Venezuela 
for  the  commencement  of  the  work,  we  began  the  same  within  the  period  fixed  by 
the  last  extension  allowed,  keeping  to  the  plan  made  bv  the  engineer  in  chief  in 
charge  of  the  work  by  wdiich  the  line  was  traced  along"  the  continuation  of  the 
Avenida  Norte,  as  is  shown  in  article  7  of  said  contract.  Unfortunately  this  line 
passes  through  the  old  cemetery  of  the  cholera  victims,  a  circumstance  which,  with 
or  without  reason,  caused  great  alarm  in  the  city,  which  caused  the  Government  to 
order  the  suspension  of  work,  which  circumstance  caused  us  some  damage,  owing  to 
the  amount  of  money  and  work  w^e  have  lost.  In  spite  of  the  fact  that  the  Govern- 
ment has  reserved  the  right  of  deciding  this  question  later  on,  the  company  I  repre- 
sent, wishing  not  to  cause  the  Government  any  inconvenience,  prefers  to  lose  what 
has  been  done  and  trace  a  new  line  east  or  west  of  the  present  one,  reserving  the 
right  of  option  of  the  one  most  suited  to  the  interests  of  the  public  and  the  company; 
said  company  to  present  for  the  approval  of  the  Government  the  new  plan  after  its 
acceptance  by  the  engineer  in  chief,  who  is  at  present  in  the  United  States,  and  by 
the  directors  of  the  company.  This  new  plan  requires  at  least  sixty  days'  time  and, 
therefore,  I  ask  of  you  to  inform  the  citizen  President  of  the  Republic  of  all  I  have 
stated  above  in  order  that  if  he  wishes  and  deems  same  convenient  he  may  issue  a 
resolution  through  you  allowing  my  constituents  to  trace  the  cable  line  through  the 
part  of  the  city  most  adapted  therefor  and  declaring  that  we  have  fulfilled  the  clause 
of  our  contract  wliich  refers  to  the  time  fixed  for  beginning  work,  so  that  we  may  in 
future  have  no  trouble  on  this  account.  I  take  the  liberty  of  pointing  out  to  you  the 
great  importance  which  the  present  petition  has  for  the  public  and  the  company 
which  I  represent,  and  I  request  the  quickest  possible  decision  of  tlie  matters  therein 
contained. 

I  ask  the  above  as  a  favor  and  an  act  of  justice  in  Caracas  on  the  15th  of  Septem- 
ber, 1890. 

(Signed)  T.  W.  Tyker, 

General  Superintendent  Caracas  and  La  Guayra  Cable  Company. 

To  tliis  letter  the  minister  of  public  works  made  the  following-  rcpl}- 

ITranslation.l 

No.  1415.]  Direction  of  Ways  of  Communication  and  Aqueducts, 

Caracas,  September  27,  1S90. 
Mr.  T.  W.  Tyrer, 

Representative  of  the  Cable  Road  between  Caracas  and  La  Guaira: 

This  ministry  has  to-day  dictated  the  following  resolution:  The  communication 
directed  to  this  ministry  Ijy  the  representative  of  the  Caracas  and  La  Guayra  Cable 
Company,  wherein  it  is  manifestecl  that  the  National  (ioveriiment  directed  (he  sus- 
pension of  the  works  on  account  of  the  line  passing  through  the  ancient  cemetery, 
where  those  who  died  with  cholera  were  buried,  and  in  which  he  asks  for  si.xty 
days  to  make  a  new  survey  and  submit  new  plans  to  the  (jovernment  without  preju- 
dice to  the  national  contract,  has  been  duly  considered  in  cabinel,  and  in  view  of  the 
information  given  by  the  medical  council," in  which  they  aflirni  that  by  opening  Ihe 
road  through  this  ground  the  pu})lic  health  might  b(^  endangered;  and  in  considera- 
tion of  the  fact  that  the  work  under  this  contract  was  conimenciMl  witiiin  \\\v  time 
fixed  by  the  law,  the  President  of  the  Rej.nblic,  with  tin;  vote  of  the  l<\'deral  Coun- 
cil, has  been  pleased  to  grant  the  company  not  only  the  sixty  days  asked,  but  has 
extended  the  time  in  wliich  to  make  the  new  surveys  and  present  a  plan  to  ninety 
days,  which  time  can  not  l)e  extended.  Article  7  of  tlu;  contract  is  therefore  ni< id i(i(>d 
in  relation  to  that  portion  referred  to  by  this  resolution,  and  the  company  is  hereby 
authorized  to  survey  a  road  as  far  as  the  slope  of  the  Avila,  well  to  the  cast  or  west 
of  Avenue  North,  provided  it  avoids  the  space  occupied  by  the  al)ove-mentione(l 
cemetery. 

Forwarded  to  you  for  your  information  and  guidance. 

(Signed)  F.  Tehueuo  Atiionzk, 

Minister  of  Public  Wurks, 


366  REPORT  OF  ROBERT  ('.  MORRIS. 

Pursuant  to  tlio  aorotMUt'iit  oxproRSod  in  tlic  foregoing,  the  companj 
made  a  new  survey,  and  on  I)eeeni])er  20,  185)0,  reported  the  same  to 
the  Government  in  the  following  letter: 

Caracas,  December  20,  1S90. 
Citizen  Ministek  oi'^  Public  "Works,  Present: 

In  the  capacity  of  representative,  for  the  present,  of  the  Caracas  and  La  Guayra 
Cable  Conii>any,  I  have  tlie  honor  of  inforniin<i;  yon,  in  order  that  you  may  com- 
municate sameto  tiie  Supreme  Rhigistrate  of  the  i\epul)lic,  that  the  company  1  rc])- 
resent,  in  compliance  with  the  resolution  made  hy  your  ministry,  has  tixed  the  line 
of  the  calile  road  which  it  has  agreed  to  build  between  this  city  and  the  port  of  La 
Guaira,  by  the  northeast  jiart  of  the  city,  crossing  the  lands  known  as  "La  Cuadra," 
as  you  will  oliserve  in  the  plan  inclosed,  which  1  beg  you  to  submit  to  the  approval 
of  the  Government  in  order  that  we  may  continue  the  work  as  soon  as  possible.  I 
inclose  herewith,  for  the  purpose  of  being  returned,  the  power  of  attorney  consti- 
tuting me  the  representative  of  the  Caracas  and  La  Guayra  Cable  Company. 

With  sentiments  of  consideration,  etc.,  I  am. 
Your  obedient  servant, 

(Signed)  J.  I.  Johnson. 

The  Government  submitted  the  new  survey  to  a  commission  of  three 
persons,  who,  on  Januarj'^  10,  1891,  rendered  a  report  as  follows: 

Caracas,  January  10,  1891. 
Citizen  Minister  of  Public  Works,  Present: 

Complying  with  the  resolution  of  your  ministry,  dated  the  2d  of  this  month, 
which  you  communicated  to  us,  we  met  with  the  purpose  of  examining  the  new 
plan  which  the  Cable  Road  Company  between  this  city  and  the  port  of  La  Guaira 
has  made  for  the  said  line;  but  we  have  met  with  the  obstacle  that  the  plans  sent  to 
your  ministry  by  said  company  are  incomplete  in  the  extreme,  so  that  upon  inspec- 
tion of  them  no  exact  judgment  of  the  projected  work  can  be  formed. 

We  therefore  requested  the  citizen  minister  to  require  the  following  of  the 
projectors: 

(1)  A  section  plan  of  the  land  chosen  for  the  line  (small  scale). 

(2)  A  plan  of  the  projected  line. 

(3)  The  longitudinal  and  transverse  profiles. 

(4)  The  plans  of  the  works  of  art  to  be  constructed. 

(5)  A  report  on  the  manner  in  which  the  construction  of  the  tunnel,  its  ventila- 
tion and  drainage  are  to  be  carried  out;  and 

(6)  A  general  report  on  the  work,  including  therein  the  expropriations. 

The  above,  citizen  minister,  is  all  we  can  report  to  you  for  the  present  respecting 
the  work  submitted  to  our  consideration. 
Dios  y  Federacion. 

Gualterio  Chitty. 

E.  Gomez  Franco. 

Augusto  Fa  Chebba. 

On  January  14,  1891,  the  compan}^  wrote  the  minister  of  public 
works  as  follows: 

Caracas,  Venezuela,  January  14,  1891. 
German  Jimenez,  Esq., 

Minister  of  Public  Works  of  Venezuela. 
Sir:  I  received  your  favor  of  the  14th  instant,  giving  me  a  list  of  information  and 
data  needed  by  tlie  commission  appointed  by  you  to  revise  the  plans  of  the  Caracas 
and  La  Guayra  Cable  Company. 

Mr.  Crowson  represented  me  before  the  commission  when  I  was  called,  and  he 
informed  them  (you  were  not  present  at  the  time)  that  the  original  plans  and  minutes 
(specifications)  were  in  Washington  and  that  I  was  going  to  said  city  on  the  21st 
instant. 

On  my  arrival  your  note  will  be  handed. to  the  company  with  the  request  that  they 
send  to  you  as  soon  as  possible  the  required  data. 
I  have  tha  honor  to  be. 
Your  obedient  servant, 

(Signed)  J.  Johnson. 


EEPORT  OF  ROBERT  C.  MORRIS.  367 

At  this  point  the  correspondence  between  the  parties  ended,  and  it 
does  not  appear  that  the  compan}"  made  any  further  efforts  to  carry 
on  the  enterprise. 

A  claim  is  now  presented  to  this  Commission  on  behalf  of  the  Caracas 
and  La  Guayra  Cable  Company  in  the  sum  of  $286,600.  The  claim  is 
summarized  as  follows: 

Value  of  concession $250,000 

Cost  of  procuring  concession 5, 000 

For  the  salary  and  expenses  of  the  expert  engineer  in  locating  the  line  and 
determining  the  amount  necessary  to  construct  and  equip  the  line  for 
business 5, 000 

Cost  of  engineer  work  in  planning  route  and  in  making  estimates  and 

detailed  plans  for  construction,  equipment,  and  maintenance  of  road 15, 000 

Cost  of  tools,  drills,  etc. ,  bought  and  shipped  to  Caracas 3,  000 

Clerk  hire  and  labor  incident  to  office  at  Caracas 3, 600 

Also  expenses  of  labor  and  grading,  attorney's  fees,  and  Spanish  assistants 
employed  during  1888,  1889,  and  1890  in  matters  relative  to  the  work. . .        5, 000 

286, 600 

The  claim  is  founded  upon  an  alleged  violation  of  the  original  con- 
tract or  concession  of  December  2,  1887.  The  memorial  states  that 
the  Government  of  Venezuela  "  in  violation  of  the  express  provisions 
of  said  grant  did  interrupt  the  work  of  construction  of  said  cable  road 
and  prevented  the  claimant  from  proceeding  under  said  concession  in 
the  performance  of  acts  expressl}^  provided  for  in  said  grant;"  that 
the  route  originally  selected  was  "the  only  feasil)lc  route  by  which  the 
road  could  be  constructed  upon  the  proposition  agreed  upon  in  said 
contract;"  that  this  route  was  "submitted  to  the  proper  authorities  of 
Venezuela  and  approved;"  that  the  order  stopping  the  work  was  with- 
out just  cause  or  excuse  and  violated  Article  XV  of  the  contract,  which 
provided  that  all  controversies  should  be  referred  to  the  competent 
courts  of  the  Government;  that  the  claimant  made  various  efforts  to 
have  said  order  vacated,  all  of  which  efforts  were  unavailing;  and  that 
on  September  27,  1890,  a  modification  of  the  original  order  stopping 
the  work  was  made  by  the  Venzuelan  Government,  whereby  the  claim- 
ant was  directed  to  change  the  route  from  that  fo)-merly  agreed  upon, 
and  the  construction  of  said  road  was  thereby  made  impossible. 

In  our  view  of  this  case  the  question  whether  the  objection  raised 
by  the  Government  of  Venezuela  to  the  route  through  the  cemetery 
of  the  cholera  victims  was  or  was  not  a  violation  of  the  original  con- 
tract is  immaterial.  The  correspondence  quoted  above  clearly  shows 
that  there  was,  subsequent  to  the  order  of  the  Government  stopping 
the  work,  an  express  waiver  by  the  company  of  any  loss  or  damage  sus- 
tained by  it  in  consequence  of  that  order,  and  a  plain  and  unecpuvocal 
■  -     -     ^.  -  .      .  It ^  ~ j-t,  of 


Jxty  day;.   ^  - -   - 

such  waiver  and  change  of  route  the  company  dcnianded  that  a  reso- 
lution be  issued  by  the  Government  permitting  tiie  company  "to  trace 
the  cable  line  through  the  part  of  the  city  most  adapted  therefor, 
and  declaring  that  the  company  had  fulfilled  the  clause  of  the  contract 
referring  to  the  time  fixed  for  beginning  work,  so  that  it  would  have 
no  trou'ole  in  the  future  on  that  account. 

The  Government  of  Venezuela  accepted  the  proposition  of  the  coin- 
panv,  made  the  desired  declaration  regarding  the  time  clause  ot  the 


308  REPORT  OF  ROBERT  C.  MORRIS. 

c)rijj;iiml  contract,  and  jrrantod  the  company  not  only  sixty  but  ninety 
days  to  enable  it  to  complete  the  new  survey;  and  on  December  20, 
1890,  the  company  submitted  its  new  plans,  tixing-  the  line  "by  the 
northeast  part  of  the  city,  crossing-  the  lauds  known  as  'La  Cuadra,'" 
to  the  (iovcrumcnt  for  its  appi-oval. 

Tims  there  was  an  expicss  modification  of  the  original  contract  by 
ao-reementof  the  ])arties  thereto,  the  proposition  for  such  modilication 
emanating-  from  the  claimant  company.  'I'here  is  no  claim  that  the 
Government  of  Venezuela  interfered  with  or  prevented  the  construc- 
tion of  the  road  under  the  contract  as  modified. 

Indeed  it  is  difficult  to  perceive  wherein  the  Venezuelan  Govern- 
ment can  be  justly  charged  with  any  deliberate  intention  to  injure  this 
claimant.  On  the  contrary  it  appears  to  have  exercised  a  considerable 
degree  of  patience  and  consideration  toward  the  company,  granting  its 
repeated  requests  for  extension  of  time  for  beginning  the  work,  which 
it  had  contracted  to  undertake  within  nine  months  after  ratification. 
In  consequence  of  the  public  alarm  caused  by  the  excavation  of  the 
old  cemetery,  the  Government  stopped  the  work  there,  but  promptly 
granted  the  company's  request  to  allow  the  continuance  of  the  work 
beyond  that  point.  And  it  as  promptly  accepted  the  proposition  for 
a  new  route,  giving  the  company  the  assurance  asked  that  it  would  not 
in  the  future  be  held  in  default  for  its  delay  in  beginning  the  work  as 
the  original  contract  required. 

From  all  the  evidence  presented  in  connection  with  this  claim,  the 
Commission  is  able  to  reach  but  one  conclusion,  which  is  that  the  Caracas 
and  La  Guayra  Cable  Company  voluntarily  abandoned  the  costly  enter- 
prise it  had  undertaken. 

The  claim  must  be  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

DECISION. 

The  United  States  of  America  on  behalf 
of  The  Caracas  and  La  Guayra  Cable  Corn- 
pan}^,  claimant,  !-No.  31. 

V.  \ 

The  Republic  of  Venezuela.      J 

The  above-entitled  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  tlie  fart  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  imrt  of  Venezuela. 
Attest  to  decision. 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  tJte  i^art  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  September  8,  1903. 


REPORT  OF  ROBERT  C.  MORRIS.  369 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}^  IT,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 
of  the  Thomson-Houston  International  Elec- 
tric Company,  claimant,  t  No.  32. 

V. 

The  Republic  of  Yenezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  tiled  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of 
the  United  States  in  replication. 


[Translation.] 

The  Thomson-Houston  International  Elec- 
tric  Company 

V. 

Venezuela. 

ANSWER. 


Claim  No.  32. 


To  the  honorable  memhem  of  the  Yenszuelan- American  Mimed  Commis- 
sion : 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has 
studied  the  claim  presented  by  the  Thomson-Houston  International 
Electric  Company,  and  respectfully  states  to  the  tribunal: 

Your  exponent  deems  that  claims  coming  within  the  class  of  the 
present,  that  is  to  say,  originating  from  contractual  obligations  still 
in  force  between  the  parties,  can  not  be  determined  by  this  honorable 
Commission.  While  neither  denying  or  consenting,  in  principle,  to 
the  debt  which  the  claimant  company  may  have  against  Venezuela,  the 
undersigned  must  observ^e  that,  in  accordance  with  the  ])rotocol  signed 
in  Washington  by  both  Governments,  it  is  agreed  that  all  claims  owned 
by  American  citizens  shall  be  decided  on  a  basis  of  absolute  eijuity. 
In  the  concrete  case,  the  claimant  has  made  a  contract  witli  the 
municipality  of  Valencia,  and  it  is  under  thi;  ()])ligati()ns  derived  from 
such  agreement  that  he  bases  his  claim.  As  the  municipality  referred 
to  has  no  voice  or  heai'ing  before  this  tribunal,  it  could  not  sul)niit  the 
exceptions  which  by  right  belong  to  it,  and  its  position  would  there- 
fore be  di.'-advantageous  and  opposed  to  that  principle  of  jurisj)ru- 
dence  and  e(|uity  which  demands  equality  of  conditions  between  con- 
tending parties. 

For  the  reasons  set  forth  the  undersigned  believes  (hat  this  claim 
does  not  fall  within  the  jurisdiction  of  this  tribunal,  but  tiiat  it  nuist 
be  determined  by  the  ordinary  tribunals  and  with  all  the  formalities 
of  procedure  established  by  the  local  laws,  to  which  the  contracting 
parties  have  expressly  submitted  themselves  by  the  contract  itself 
which  binds  them.  Contract  entered  into  on  the  date  of  the  21st  of 
December,  1887. 

F.  Akuoyo  I'ake.io. 

Caracas,  July  7.S',  1903. 

S.  Doc.  .'517,  58-2 24 


370  REPORT  OF  ROBERT  V.   MORRIS. 

1)0 lore  the  Mixed  Commission  oroanized  under  the  protocol  of  Febru- 
ary 17,  190;->,  between  the  United  States  of  America 
and  the  Kepublic  of  Venezuela. 

The  Unitkd  States  of  America  on  behalf 
of  the  Thomson-Houston  International  Elec- 
tric Companj',  claimant, 

7'. 

The  Kepublic  of  Venezuela. 


No.  32. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  answer  of  Venezuela  the  sole  point  raised  is  one  of  jurisdic- 
tion of  this  Commission  over  the  claim  in  question,  it  being  contended 
that  the  claim  should  be  decided  by  a  local  tribunal  in  which  the 
municipality  of  Valencia  might  appear  as  one  of  the  parties. 

On  this  point  we  submit  that  the  Government  of  Venezuela  has 
entered  into  an  agreement  by  which  all  unsettled  claims  of  citizens  of 
the  United  States  shall  be  examined  and  decided  by  this  high  Com- 
mission and  that  by  virtue  of  this  agreement  it  has  deprived  itself  of 
the  right  to  assert  that  such  claims  of  citizens  of  the  United  States 
should  be  determined  by  its  local  courts.  Venezuela  does  not  deny  in 
principle  this  claim,  and  this  Commission,  which  has  absolute  jurisdic- 
tion over  the  matter,  should  render  an  award  in  this  case  for  the 
amount  claimed. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of  the  Thomson-Houston  International  Elec- 
tric Company,  claimant,  Y  No.  32. 
V.  I 
The  Republic  of  Venezuela.              j 

DECISION. 

Opinion  b}^  Doctor  Paul,  Commissioner. 

The  Commission  dismisses  the  claim,  without  prejudice  to  the  claim- 
ant, for  want  of  jurisdiction. 

The   United   States  and  Venezuelan  Claims   Commission,  sitting  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  Thomson-Houston  International  Electric 
Company,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  32. 


Doctor  Paul,  Commissioner: 

This  company,  as  claimant,  presents  itself  to  this  Commission,  pre- 
tending that  the  Government  of  Venezuela  should  be  made  directly 


REPORT  OF  ROBERT  C.  MORRIS.  37 1 

responsible  for  the  payment  of  the  balance  of  a  crtrdit  against  the 
municipality  of  the  city  of  Valencia,  amounting  to  48,005.28  bolivars 
up  to  May  30,  of  this  year,  for  the  service  of  public  electric  lighting 
for  previous  years  and  continued  up  to  date  by  said  company^under 
its  contract. 

Amongst  the  documents  presented,  there  is  a  copv  of  the  original 
contract  between  the  national  Executive  and  Miguel  J.  Dooley.  dated 
September  21,  1887,  granting  to  the  latter  for  the  term  of  twenty-five 
years  the  exclusive  right  to  establish  in  the  territory  of  the  Kepublic 
the  electric-light  system;  the  grantee  having  to  make  special  arrange- 
ments with  the  diiferent  municipalities  for  the  establishment  of  the 
electric  lighting  in  their  respective  localities. 

From  the  copies  of  diverse  arrangements  made  with  the  municipal 
board  of  Valencia,  annexed  to  the  memorial,  it  appears  that  said  cor- 
poration acknowledges  as  correct  the  balance  due  to  the  company  pre- 
sented for  collection  and  found  in  accordance  with  the  corporation's 
books;  said  corporation  claiming  at  the  same  time  that  the  company 
owed,  on  its  side,  up  to  June  26,  liJ02,  the  sum  of  2,333.35  bolivars 
for  municipal  taxes,  of  1,000  bolivars  per  annum,  levied  by  said  cor- 
poration on  the  electric-light  company  from  October  15,  1901.  The 
Thomson-Houston  International  Electric  Company  denies  to  the 
rnunicipality  of  Valencia  the  right  to  lev}'  an  annual  tax  for  the  exer- 
cise of  their  industry,  basing  their  arguments  on  the  terms  of  the 
original  grant  of  the  national  Government;  that  in  article  4  it  states 
that  the  said  industr}^  would  be  exempt  of  the  pa3'ment  of  am^  national, 
State,  or  municipal  taxes. 

The  account  kept  by  said  company  with  the  municipality  of  Valen- 
cia, up  to  Ma}'  31,  1903,  has  been  presented  to  this  Commission,  and 
said  account  shows  that  the  company  has  been  receiving  lately  (in  the 
months  of  February,  March,  April,  and  May)  cash  payments  on  account, 
amounting  to  21.280  bolivars,  and  the  company  from  the  month  of 
March  reestablished  the  public  lighting  service  of  fiftv  arc  lights  that 
had  been  suspended  from  June,  1902,  until  Ft^bruar}',  1903,  This 
circumstance  proves  that  the  business  relations  between  the  Thomson- 
Houston  International  Electric  Compau}"  and  the  nuinicipality  of 
Valencia  were  in  activity  1)}'  a  mutual  agreement,  and  it  can  not  be 
understood  why  said  compan}'  pretends  to  claim  from  the  national 
Government  the  pa3'ment  of  the  balance  of  a  current  account  kept 
with  a  municipality  of  one  of  the  Federal  States,  while  the  interested 
parties  kept  in  activity  the  credit  and  debit  of  their  account. 

This  Commission  ought  to  dismiss  this  claim  for  lack  of  jurisdiction 
without  prejudice  to  the  claimant. 


372  REPORT  OF  ROBERT  C.  MORRfS. 

The  United  States  and  Venezuelan  C'lainis  Commission,  sitting  at 
Caracas,  Venezuela. 

DECISION. 


The  United  States  of  America  on  behalf 
of  the  Thomson-Houston  International  Elec- 
tric Company,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  32. 


The  above-entitled  claim  is  hereby  dismissed,  without  prejudice  to 
the  claimant,  for  want  of  jurisdiction. 

.  William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  thej^cirt  of  Venezuela. 

Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  'part  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  September  18,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Henry  C.  Bullis,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  88. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  filed  by  the 
agent  of  Venezuela  in  answer,  and  a  brief  was  filed  b}^  the  agent  of  the 
United  States  in  replication. 

[Traiisliitiou.] 

Harry   C.   Bullis  ) 

V.  >  Claim  No.  33. 

Venezuela.        j 

ANSWER. 

IIo7}orahle  memhers  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has  stud- 
ied the  claim  pj-esented  by  the  American  citizen  Harry  C.  Bullis,  and 
respectfully  shows  to  the  tribunal: 


REPOKT  OF  ROBERT  C.  MORRIS.  373 

The  present  claim  arises  from  the  detention  in  the  lirst  place  and  the 
judgment  thereafter  rendered  by  the  tribunals  of  the  State  of  Zulia 
against  the  claimant,  for  having  committed  the  offense  which  article 
477  of  the  Penal  Code  in  force  defines  and  classifies. 

It  appears  from  the  documents  produced  by  the  claimant  himself 
that  the  local  tribunals,  following  strictly  the  proceedings  provided  for 
in  the  laws  of  criminal  offenses  existing  in  Venezuela,  sentenced  and 
condemned  him. 

The  Department  of  State  of  the  United  States,  answering  the  peti- 
tion instituted  by  the  lawyers  of  the  claimant  for  intervention,  says 
literally:  "That  the  only  proof  adduced  in  support  of  the  claim  of 
Bullis  consists  in  his  declaration."  In  effect  it  appears  that  the  claim- 
ant, be  it  on  account  of  his  imprudence  or  deliberate  participation 
entered  into  by  him,  found  himself  compromised  by  the  fact,  properly 
proved,  of  having  in  his  residence  explosive  materials. 

No  responsibility  can  be  attached  to  the  Government  of  Venezuela 
because  its  judicial  authorities  have  in  this  case  applied  the  penal  law. 

With  regard  to  what  concerns  the  acts  of  instruction,  of  jurisdiction,  and  of  repres- 
sion exercised  in  foreign  countries  upon  transgressors  of  other  States,  the  general 
principle  is:  That  the  stranger  is  subject  to  the  system  of  common  law  applicable  to 
citizens.     (Pradier  Fod6re  Droit  International  Publique,  paragraph  204,  vol.  1.) 

In  order  that  the  claim  might  be  a  legitimate  one,  it  would  have  been 
necessary  to  prove  in  the  first  place  a  denial  of  justice,  and  in  the  con- 
crete case  it  appears  to  liave  been  prompt  and  expeditious.  (See  the 
communications  of  Consul  Plumacher.) 

As  a  general  rule,  the  intervention  on  the  part  of  foreign  govern- 
ments is  only  justified  in  the  following  cases:  (1)  When  there  has  been 
a  violation  of  the  law  of  nations;  (2)  when  there  is  proof  of  an  arbitrary 
procedure,  or  a  denial  of  justice  on  the  part  of  the  local  authorities; 
(3)  in  the  case  of  a  manifest  injustice  in  violation  of  the  established 
forms  or  oppressive  distinctions  between  citizens  and  foreigners;  (4) 
when  there  has  been  a  violation  of  a  public  treaty,  and  (5)  when  the 
local  autiiorities  have  exceeded  their  jurisdiction. 

In  the  present  case  none  of  the  circumstances  above  indicated  has 
been  proved  by  the  claimant;  therefore  the  liability  of  the  Govern- 
ment of  Venezuela  can  not  be  sustained. 

Caracas,  July  18,  1903. 

F.  Arroyo  Farejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 

of  Henry  C.  Bullis,  claimant,  ^  ^^^   33^ 

V. 

The  Republic  of  Venezuela. 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  has  presented  in  this  case  the  cluini  of  Henry  (^ 
Bullis  for  damages  for  arrest,  impiisoiunent,  and  unlawiui  detention 
at  Maracail)o,  Venezuela,  amounting  to  $50,000.  I  lis  complaint  relates 
to  his  arrest  at  Maracaibo  Avhile  enii)loycd  there  as  chief  niecliamcai 
and  electrical  engineer  by  the  Maracaibo  p:ie(;tric  Light  Company. 

From  the  iiK^morial  submitted  to  this  Commission,  it  ai)i)ears  that 


374  REPORT  OB^  ROBERT  C.  MORRIS. 

some  of  tlio  onii)lovoos  of  the  company  wore  sympathizers  with  the 
Venezuelan  revohitionary  party,  then  prepaiint;"  lor  an  u})risino-.  Mr. 
BuUis  was  arrested,  hein^-  ehar^ed  with  making-  explosives  and  con- 
cealing- arms  and  ammunition,  which  is  pi<)hil)ited  by  the  Venezuehin 
law.  Mr.  BuUis  had  become  aware  of  tlie  fact  that  certain  explosives 
and  war  materials  were  beino-  brought  to  the  premises  of  the  Electric 
Light  Company  and  left  there  for  distribution  throughout  the  city  by 
a  man  named  Jimenez.  As  these  materials  began  to  accumulate  he 
urged  fllmenez  to  remove  them,  but  he  was  advised  that  the  mateiuals 
were  to  be  held  there  awaiting-  orders  froni  the  parties  to  whom  they 
were  to  be  delivered.  Thereupon  Mr.  BuUis  called  upon  the  President 
of  the  State  of  Zulia,  Gen.  Emilio  Yalbuena  T.,  to  whom  he  gave 
information  concerning  the  storage  of  these  explosives.  His  arrest 
was  brought  about  by  an  arrangement  Avith  the  President,  whereby  he 
was  to  transfer  a  portion  of  the  war  material  from  the  electric-light 
station  to  his  own  house,  so  as  to  ali'ord  a  pretext  for  placing  him 
under  arrest,  and  whereby  he  was  subsequently  to  be  honorably  dis- 
charged. His  reason  for  entering  into  this  arrangement  was  that  he 
feared  that  he  would  suffer  bodily  injury  at  the  hands  of  the  revolu- 
tionists if  it  became  known  who  gave  the  information  concerning  the 
explosives.  Accordingly,  the  following  day,  President  Valbuena  went 
to  the  house  of  Mr.  BuUis  and  caused  a  search  to  l)e  made.  The  result 
was  that  Mr.  Bullis  was  placed  under  arrest.  The  agreement  entered 
into  was  not  carried  out  and  Mr.  Bullis  was  held  for  trial.  A  trial 
was  had  in  the  court  at  Santa  Barbara  and  the  claimant  was  convicted 
and  sentenced  to  three  months  imprisoment.  An  appeal  was  there- 
upon taken  to  the  district  court  at  Maracaibo,  which  confirmed  the 
judgment  of  the  lower  court.  The  matter  was  subsequently  called  to 
the  attention  of  the  United  States  legation  at  Caracas,  and  through  its 
efforts  a  telegram  was  sent  b}"  President  Castro  directing-  the  release 
of  Mr.  Bullis.  He  was  placed  at  liberty  two  weeks  before  the  expira- 
tion of  his  sentence. 

The  letters  accompan^^ing  the  memorial  of  the  claimant  go  to  show 
that  Mr.  Bullis  had  never  meddled  in  the  politics  of  the  country  and 
that  he  was  highly  respected  as  a  resident  of  Maracaibo.  It  is  evident 
that  he  was  innocent  and  that  he  was  the  victim  of  unfortunate  circum- 
stances. The  most  that  can  be  said  against  him  is  that  he  was  over- 
zealous  in  his  desire  to  aid  the  recognized  Government  of  Venezuela 
with  the  knowledge  in  his  possession. 

The  Republic  of  Venezuela  should  respond  in  damages  upon  the  facts 
in  this  case  for  the  arrest  and  detention  of  the  claimant. 

For  the  law  governing  such  cases  reference  may  be  had  to  the  fourth 
volume  of  Moore's  International  Arbitrations,  page  3235  et  seq.  In 
the  cases  there  collated  there  has  universally  been  held  to  be  a  liability 
for  arrest  and  imprisonment  without  cause,  for  undue  detention,  even 
where  the  arrest  w^as  leased  upon  probal)le  cause,  and  for  harsh  and 
arbitrarj'  treatment  during  imprisonment  whether  the  arrest  was  war- 
ranted or  not.  Applying  these  principles,  as  to  which  there  can  be 
no  question,  to  the  facts  in  this  case,  we  submit  that  an  award  should 
be  made  for  the  claimant. 

Respectfully  submitted. 

Robert  C.  Morris, 
A</ent  of  the  United  States. 


No.  33. 


REPORT  OF  ROBERT  C.  MORRIS.  375 

The  United  States  and  Venezuelan  Claims  Conuuission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  Heniy  C.  Bullis,  claimant, 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  by  Bainbridge,  Commissioner. 
The  Commission  disallows  the  claim. 
September  1,  1903. 

The  United  States  and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ~ 

of  Henry  C.  Bullis,  claimant,  >t     oo 

V.  j 

The  Republic  of  Venezuela. 

Bainbridge,  Commissioner. 

Henry  C.  Bullis,  a  native-born  citizen  of  the  United  States,  in 
August,  1900,  and  for  nearly  two  years  previous  thereto,  was  employed 
as  chief  mechanical  anc  electrical  engineer  by  the  Electric  Light  Com- 
pany of  Maracaibo,  Venezuela.  Some  of  the  employees  of  the  com- 
pany were  sympathizers  with  the  revolutionary  party,  then  making 
preparations  for  an  uprising.  Quantities  of  bombs,  cartridges,  and 
other  munitions  of  war  were  brought  to  the  electric-light  works,  stored 
there,  and  taken  from  there  for  distribution  throughout  the  city  to 
members  of  the  revolutionary  party.  Some  of  the  bombs  were  found 
by  the  Venezuelan  authorities  at  the  electric  light  works  in  a  room 
to  which  Bullis  had  a  key,  and  in  his  private  residence  several  tirearms 
and  a  quantity  of  cartridges  for  ^iauser  rifles  were  found. 

Bullis  was  arrested,  charged  with  a  violation  of  the  laws  of  Venezuela. 
He  was  tried  in  the  nnmicipal  court  of  Santa  Barbara,  convicted,  and 
on  November  8,  1900,  was  sentenced  to  an  imprisonment  of  three 
months  in  the  public  jail.  The  case  was  appealed  to  the  district  court 
of  Maracaibo,  and  the  sentence  of  the  lower  court  was  affirmed  on 
November  26,  1900,  the  court  stating  in  its  judgment  that  ''the  guilt 
of  said  Henry  C.  Bullis  is  plainlv  proven."  Through  the  intervention 
of  the  United  States  legation  at  Caracas,  Bullis  was  liberated  two 
weeks  before  the  expiration  of  his  sentence. 

A  claim  is  here  presented  on  l)ehalf  of  Bullis  in  the  sum  of  l?r>(>,000 
for  wrongful  arrest  and  imprisonment. 

A  careful  examination  of  the  evidence  presented  in  this  case  con- 
vinces the  commission  that  Bullis  was  arrested,  tried,  and  convicted  in 
strict  accordance  with  the  laws  of  Venezuela  to  which  he  was  at  the 
time  subject  and  in  confoimitv  with  the  usual  i)r(>ce(lureof  its  t-ourts; 
that  his  trial  was  not  unnecessarily  delayed;  that  ho,  was  provided 
with  counsel;  that  he  was  allowed  to  communicate  with  the  represen- 
tative of  his  Government;  that  there  was  no  undue  discrimination 
against  him  as  a  citizen  of  the  rnited  States,  nor  was  there,  in  his 
trial,  an V  violation  of  those  rules  for  the  maintenance  of  justice  m 
judicial  m(iuiries  which  are  sanctioned  by  international  law.     it  does 


376  REPORT  OF  ROBERT  0.  MORRIS. 

not  appear  that  ho  was  subjocted  to  any  imnocossarily  liarsh  or  arl)i- 
trary  troatnuMit  duriiio-  his  imprisonnuMit. 

The  respoiuhMit  (Jovenimeiit  has  incurred  no  lial)ility  to  this  ehiim- 
ant.  Every  nation,  whenever  its  hiws  are  viohited  by  anyone  owin,L»- 
ol»edience  to  tliein,  wiietlier  lie  be  a  citizen  or  a  stranger,  has  a  right 
to  inflict  the  prescril)ed  penalties  upon  the  transgi-essor  if  found  within 
its  jurisdiction;  provided  always  that  the  laws  themselves,  the  methods 
of  administering  them,  and  the  penalties  prescribed  are  not  in  deroga- 
tion of  civilized  codes. 

The  claim  must  be  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

DECISION. 

The  United  States  of  America  on   behalf] 

of  Henry  C.  Bullis,  claimant,  1  ^      oo 

V. 

The  Republic  of  Venezuela. 

The  above-entitled  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 

CommiHdoner  on  the  part  of  the  United  States  of  America. 

J.  de  J.  Paul, 
Commissioner  on  the  jx^it't  ^f  Veiiezuela. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest : 

J.  Padron  Uztariz, 

Secretary  on  thejpart  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  September  1,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 
of  John  Baptiste  Ferreol  Ponsot  Monnot,  I 
claimant,  rNo.  34. 

V.  1 

The  Republic  of  Venezuela.  J 

brief   on   BEHAIiF  OF   THE   UNITED   STATES. 

The  United  States  presents  in  this  case  the  claim  of  John  Baptiste 
Ferreol  Ponsot  Monnot,  for  the  sum  of  $206,681.12  and  interest,  for 
damages  and  losses  occasioned  by  the  illegal  and  wrongful  acts  of  the 
Government  of  Venezuela. 

I. 


statement  of  fact. 

born  at 
The 


The  claimant  is  a  citizen  of  the  United  States,  having  been  b 
Clason  Point,  Westchester  County,  in  the  State  of  New  York. 


KEPORT  OF  ROBERT  C.  MORRIS.  377 

claim  arises  from  the  acts  of  the  Venezuelan  authorities,  who  seized 
the  goods  and  properties  of  claimant  at  the  town  of  Amacuro,  British 
Guiana,  and  thereby  destroyed  his  ])usiness.  The  town  of  Amacuro 
is  located  in  the  territory  awarded  Venezuela  by  the  Paris  court  of 
arbitration.  The  claimant  had  located  his  business  there  in  1899. 
During  the  temporar^^  absence  of  the  claimant  from  Amacuro  a  com- 
missioner of  the  collector  of  customs  at  Ciudad  Bolivar  came  to  Ama- 
curo and  took  possession  of  the  property  of  the  claimant.  The  claimant 
thereupon  made  formal  protest  and  declaration  l)efore  the  judge,  the 
collector  of  customs,  and  the  inspector-general  of  customs.  These 
officials  admitted  that  the  action  taken  against  the  claimant  was  im- 
proper, and  offered  to  arrange  matters  by  returning  the  property  of 
the  claimant  if  he  would  agree  to  waive  all  rights  for  losses  sustained 
by  their  orders  or  by  the  acts  of  the  Government's  representatives, 
and  pay  duty  in  accordance  with  the  Venezuelan  tariff.  The  claimant 
informed  them  that  their  arbitrary  action  had  made  it  impossible  for 
him  to  continue  his  business. 

On  the  18th  of  February,  1901,  the  judge  of  hacienda  delivered  an 
opinion  dismissing  all  charges  against  the  claimant,  without  costs. 

The  claimant  was  engaged  in  the  business  of  gathering  balata  gum 
on  the  Amacuro  and  Berrima  rivers,  and  after  the  seizure  of  his 
store  had  no  means  of  supplying  the  goods  to  the  large  gangs  of  men 
employed  by  him.  All  of  these  men  were  largely  indebted  to  him  for 
advances  in  cash  and  supplies,  and  as  soon  as  they  understood  the  situa- 
tion they  took  advantage  of  it  and  ran  away  with  the  balata  gum  which 
had  been  collected.  In  addition  to  the  large  number  of  men  whom  the 
claimant  had  employed,  he  had  made  arrangements  in  Berbice  with  his 
foreman  to  bring  additional  gatherers  for  the  new  season  beginning  in 
January.  He  was  unable  to  put  these  men  to  work  on  account  of  the 
action  taken  against  him,  and  in  consequence  was  subjected  to  the  loss 
of  profits  for  the  season  of  1901. 

II. 

The  Venezuelan  Government  is  responsible  for'  tlie^  damages  vj/ilch 
accrued  to  the  claimant  hy  reason  of  his  having  been  illegally  deprived 
of  his  j>roperty  and  for  the  loss  to  his  business. 

It  is  perfectly  clear  from  the  facts  in  this  case  that  the  Government 
of  Venezuela  is  directly  responsible  for  the  illegal  acts  of  which  com- 
plaint is  made.  The  wrongfulness  of  the  motion  taken  against  the 
claimant  was  shown  by  the  .decision  of  the  judge  of  hacienda. 

The  rule  of  international  law,  as  to  the  rcsi)onsibility  of  a  govern- 
ment for  illegal  acts  of  this  character,  has  been  estal)lisl)(>d  iM'.yond  a 
question.  See,  especiallv,  the  following  cases  and  decisions  of  lonner 
arbitration  commissions  cited  in  Moore's  work  on  intiM-naticnal  arbi- 
tration: The  case  of  Kivas,  at  page  3780,  where  an  embargo  was  placed 
on  certain  property  by  Spain  and  subsecjuently  released  as  not  being 
properly  taken,  and  i\w  Spanish  Government  was  held  by  the  commis- 
sion liable  for  the  loss  caused  by  the  retention  and  embargo.  Also 
see  case  of  Madan,  at  page  3781,  and  the  case  of  Mora  and  Arango,  on 
page  3782,  of  the  same  work.  ,  .    n    .     ... 

There  can,  therefore,  under  the  iuithorities  be  no  doubt    that    .m 


378  REPORT  OF  ROBERT  C.   MORRIS. 

awaril  sliould  bo  mado  for  the  damage  claiinaiit  has  suffered  by 
reason  of  tlio  ilU'gal  taking  of  his  property  and  the  destruction  of  his 
business. 

Respectfully  submitted. 

lioBERT  C.  Morris, 
Agent  of  the  United  States. 

[Translation.] 

John  Baptiste  Ferreol  Ponsot   Monnot  | 

v.  VNo.  34. 

Venezuela.  ) 

ANSWER. 

Honorable  members  of  the  Venezuelan- Amepican  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has 
studied  the  papers  of  the  claim  of  Mr.  Jean  Baptiste  Ferreol  Ponsot 
Monnot,  and  respectfully  shows  to  this  tribunal: 

The  present  claim  arises  out  of  damages  suffered  in  the  property  of 
the  claimant  by  acts  of  Venezuelan  authorities.  It  appears  from  the 
argument  of  the  honorable  agent  of  the  United  States  that  a  judicial 
process  was  instituted  against  the  claimant  in  proper  form,  that  it 
ended  with  a  final  judgment. 

One  of  the  essential  proofs  which  ought  to  have  been  brought  for- 
ward to  sustain  the  claim  is  the  certified  copy  of  the  judgment  afore- 
said, in  order  that,  by  examining  it,  it  could  be  determined  if  there 
had  been  a  denial  of  justice.     This  proof  has  not  been  furnished. 

As  to  the  rest,  the  claimant  has  not  shown  by  any  sort  of  proof  the 
amount  of  damages  suffered;  therefore,  there  is  nothing  as  to  this 
except  his  own  affirmation.  There  is  no  doubt  but  that  the  proceed- 
ing of  the  Venezuelan  authorities  was  in  perfect  accord  with  local  legis- 
lation, since  a  judgment  was  obtained  in  proper  form. 

The  undersigned  has  found  it  impossible  to  secure  any  information 
respecting  this  matter,  owing  to  the  abnormal  condition  of  the  State 
of  Guayana,  in  the  archives  of  which  should  be  found  all  of  the 
proceedings. 

As  this  is,  above  all,  a  tribunal  of  equity,  the  undersigned  makes 
this  argument  in  order  that  it  may  be  taken  into  consideration  upon 
the  rendering  of  a  final  judgment. 

Caracas,  July  20,  1903. 

F.  Arroyo  Parejo. 

The  United  States  and  Venezuela  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  John  Baptiste  Ferreol  Ponsot  Monnot, 
claimant,  \  No.  34. 

The  Republic  of  Venezuela. 

DECISION  AND  AWARD. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  awards   to   the   claimant   the   sum   of  $4,692.08, 
United  States  gold. 
September  22,  1903. 


REPOET  OF  ROBERT  C.  MORRIS.  379 

The  United  States  and  Venezuelan    Claims   Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of  John  Baptiste  Ferreol  Ponsot  Mounot,  | 
claimant,  j-No.  34. 

V. 

The  Republic  of  Venezuela. 

Bain  bridge  ,  Cowm  issioner  ;* 

The  claimant  is  a  native  citizen  of  the  United  States.  In  November, 
1899,  he  established  a  store  at  Amacura,  British  Guiana,  for  the  pur- 
pose of  supplying  men  employed  by  him  in  collecting  balata  gum,  as 
well  as  for  the  sale  of  supplies  and  a  general  trading  business.  The 
town  of  Amacura  is  located  in  the  territory  awarded  Venezuela  by  the 
Paris  Court  of  Arbitration.  On  December  4,  1900,  during  Monnof  s 
absence  from  Amacura,  a  commissioner  of  the  collector  of  customs  at 
Ciudad  Bolivar  came  to  Amacura,  seized  claimant's  goods,  and  closed 
his  store.  A  suit  was  initiated  against  Monnot  before  the  judge  of 
finance  in  Ciudad  Bolivar  on  the  charge  of  smuggling  certain  mer- 
chandise, but  it  was  shown  at  the  trial  that  the  last  shipment  of  goods 
received  by  him  was  on  October  19,  1900,  while  the  territory  was  still 
in  British  possession,  whereupon  a  decree  of  dismissal  was  entered  in 
the  action  on  February  8, 1901,  and  upon  appeal  to  the  Supreme  Court 
of  Finance  in  Caracas'the  judgment  of  the  lower  court  Avas  affirmed  on 
March  16,  1903.  The  claimant  states  that  in  January,  1901,  his  rep- 
resentative having  been  expelled  from  Amacura,  the  Venezuelan 
authorities  took  and  sold  the  greater  part  of  his  goods  and  removed 
the  balance  from  his  store;  that  as  he  had  no  means  of  supplying  the 
large  gangs  of  men  employed  by  him  with  goods,  and  who  were  largely 
indebted  to  him  for  advances  in'cash  and  supplies,  they  took  advantage 
of  the  situation  and  ran  away,  taking  with  thorn  the  gum  they  had 
gathered.  He  also  claims  that  he  had  engaged  men  for  the  season 
of  1901  and  was  unable  to  put  them  to  work  and  as  a  consequence 
lost  the  profits  for  that  year. 

Mr.  Monnot  summarizes  his  claim  as  follows: 

( 1 )  Value  of  goods  seized  as  per  inventory - ^p  ;*j,^'|-  -'^ 

(2)  Amount  lost  in  advances  made  to  balata  gatherciH  who  ran  away...       o,  .h-i.  i»< 

(3)  Value  of  the  l)alata  gum  stolen  by  said  men,  64,800  pounds,  at  50 

cents  per  pound -  -  -  -  -  -  -  -  -  - -----     '^-' 

(4)  Salaries  paid  to  employees  since  December,  1900,  to  February,  1901, 

three  months,  at  $225  per  month - iuo.w 

(5)  One  breech-loading  shotgun  and  one  revolver  taken  from  my  rcpre-  ^  ^^^  ^^^ 

sentative - .,  rJuV  oo 

(6)  Expenses  occasioned  by  the  case,  such  as  trayehiig  .------ --  •"    ■ 

(7)  Attorneys'  fees  in  Ciudad  Bolivar  as  per  receipt,  /,S00  l)..livars I.oUO.liU 

(8)  Indemnity  for  personal   time,  attention,  mconvemciice,  etc.,  occa-  ^^^^ 

sinned  in  defense  of  the  case ■/,:,:,■";• T  •  T 

(9)  Indenmity  for  the   loss  of  the  gathering  season   1901,   l..r  whicli     ^  ^ 

arrangements  an<l  contracts  had  been  made. :  -  -  -  -     •'-.  "*"'• 

(10)  Indemnity  for  the  loss  of  all  business  prospects  of  my  ♦•nteri-rise  at  ^^  ^^^^^ ^^ 

Amacura ' 

207,<)18.  04 
Credit  less  amount  obtaine<l  by  sal(M)f  goods  remaining  sold  by  order 
of  the  court  of  hacienda,  paid  my  agent  at  Cuida<l  lloiivar  Noveml.ti  ^^^^^  ^^^ 

4,  1901 " 

200,(381.12 


880  REPORT  OF  ROBERT  0.  MORRIS. 

The  loarnod  counsol  for  Vonozuohi  intorposos  as  a  defense  to  this 
claim  that  the  ])roceedin_ii-  of  the  revenue  oflicers  in  seizing  the  claim- 
ant's o-oods  was  in  perfect  ai-cord  with  local  legislation.  But  it  is 
evident  from  tlie  record  in  the  case  that  a  reasonable  in(iuiry  would 
have  disclosed  the  fact  that  jNIonnot  had  imported  the  goods  prior  to 
the  time  the  (xovernment  of  Venezuela  took  possession  of  the  territory. 
Mr.  Monnot's  representative  testifies  that  at  the  thuc  he  made  '^ener- 
getic protests  "  against  the  seizure. 

Only  partial  restitution  was  made  to  the  claimant  after  the  dismis- 
sal of  the  case.  He  is  entitled  to  compensation  for  the  proximate  and 
direct  consequences  of  the  wrongful  seizure  of  his  property.  In  the 
similar  case  of  Smith  r.  Mexico,  decided  by  the  United  States  and 
Mexican  Commission  of  1839  (4  Moore,  Int.  Arb.,  3374-)  an  award  was 
made  for  the  value  of  property  lost  or  destroyed  pending  the  judicial 
proceedings,  Avith  a  reasonable  mercantile  profit  thereon. 

Items  1,  4,  and  5  of  his  claim  are  allowed.  To  this  amount  is  added 
the  sum  of  $2,000  for  expenses  incurred  b}^  him  in  consequence  of 
the  suit.  From  this  total  of  $5,233.97  must  be  deducted  the  sum 
of  $936.92,  the  amount  obtained  by  sale  of  the  goods  restored  by  order 
of  the  court.  Interest  is  allowed  upon  the  balance  of  $4,297.05  at  3 
per  cent  per  annum  from  December  4,  1900,  to  December  31,  1903, 
the  anticipated  date  of  the  tinal  award  by  this  Commission.  ^ 

As  to  the  remaining  items  of  the  claim,  the  evidence  is  insufficient 
to  establish  any  liability  therefor  on  the  part  of  the  Government  of 
Venezuela,  and  they  are  hereby  disallowed. 

The   United   States   and  Venezuelan   Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  John 
Baptiste  Ferreol  Ponsot  Monnot,  clamant,  against  the  Republic  of 
Venezuela,  No.  34,  the  sum  of  four  thousand  six  hundred  ninety-two  and 
08100  dollars  ($4,692.08)  United  States  gold,  is  hereby  awarded  to  said 
claimant,  which  sum  shall  be  paid  by  the  Government  of  Venezuela  to 
the  Government  of  the  United  States  of  America,  in  accordance  with 
the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Co7iimissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Coimniasioner  on  the  part  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  <fthe  United  States  of  America. 

Delivered  September  22,  1903. 


No.  35. 


REPOKT  OF  ROBERT  C.  MORRIS.  381 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  J.  B.  Bance,  receiver  in  bankruptcy  of 
Ernesto  Capriles,  for  the  benefit  of  Weeks, 
Potter  &  Co, ,  Seabury  &  Johnson,  and  John- 
son &  Johnson,  American  citizens,  claim- 
ants, 

V. 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  presents  in  this  case  the  claim  of  J.  B.  Banco  as 
receiver  in  bankruptcy  of  Ernesto  Capriles,  acting  for  various  creditors 
of  said  bankrupt,  among  whom  are  the  firms  of  Weeks,  Potter  &  Co., 
Seabury  &  Johnson,  and  Johnson  &  Johnson,  whose  claims  respectfully 
amount  to  11,153.61  bolivars,  2,259.81  bolivars,  and  2,163.12  })olivars. 

This  claim  arises  out  of  an  order  No.  1720,  drawn  by  the  minister 
of  interior  relations  of  Venezuela,  administrative  department,  under 
date  December  27,  1897,  addressed  to  the  minister  of  finance  for  the 
sum  of  200,000  bolivars  in  favor  of  said  bankrupt.  The  appointment 
of  Doctor  Bance  under  article  805  of  the  Code  of  Commerce  is  sub- 
mitted in  the  evidence.  There  can  be  no  question  as  to  ths  responsi- 
bility of  the  Government  of  Venezuela  on  this  conceded  obligation. 
An  award  should  be  made  by  this  Commission  for  the  amounts  due  to 
the  American  citizens  above  named. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


J.  B.  Bance  ) 

V.  VNo.  35. 

Venezuela.  ) 


[Translation.] 


ANSWER. 


Honorahle  memhers  of  the  Mixed  Venezxuelan- American   Comvti.^sioit, 

addressed: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  J.  V>.  15ance  in  liis  capacity  of  receiver  in  baid<- 
rujitcy  of  Ernesto  (Japriles,  and  r(>spectfully  shows  to  the  tribmial: 

The  debt  claimed  arises  out  of  an  order  drawn  l)y  the  minist(>r  of 
interior  relations,  under  date  of  December  27,  1897,  against  th(^ 
minister  of  hacienda  and  in  favor  of  said  Ernesto  Capriles  for  th(^ 
value  of  200,000  bolivars. 

It  is  easy  to  see  tiiat  this  chiiin  can  not  be  considered  by  the  Inbir 
nal;  in  effect,  the  order  alluded  to  forms  a  part  of  the  goods  at  tachcMJ 
and  does  not  })clong  in  particular  to  any  of  tlie  creditors.  The  ( ^oni- 
mission  would  lack  sufficient  information  to  fix  the  pro  rata  which 
would  belong  to  the  American  creditors  so  long  as  the  procecdmgs  in 
bankruptcy  arc  pending. 


382  REPOKT  OF  KOHEKT  C.   MORRIS. 

Besides,  uccordino-  to  Mio  oen(>ral  rules  of  commercial  law,  the  judi- 
cial liciuidatioM  of  a  business  corpoi'ation  constitutes  a  juridic  person- 
ality distinct  from  that  of  the  partneis,  and  ;Uso  from  the  creditors 
thereof,  represented  by  the  trustee  or  receiver  named.  In  the  present 
case  said  person  does  not  possess  the  qualirications  recpiired  by  the 
protocol  sioned  in  Washington  in  February  of  the  present  year,  in 
order  that  he  can  come  before  this  Commission  in  the  capacity  of  a 
claimant. 

Therefore  the  claim  ouj^'ht  to  be  disallowed. 

Caracas,  July  24,  1903. 

F.  Arroyo  Parejo. 

Before  the  INIixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  J.   B.   Bance,   receiver  in  bankruptcy  of 
Ernesto  Capriles,  for  the  benefit  of  Weeks, 
Potter  &  Co.,  Seabury  &  Johnson,  and  John-  ^No.  35. 
son  &  Johnson,  American  citizens,  claimants, 

V. 

The  Republic  of  Venezuela. 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

I.  In  the  answer  of  Venezuela  in  the  above-entitled  action  it  is 
asserted  that  the  person  making  the  claim  before  this  tribunal  does 
not  possess  the  ciualifications  required  by  the  protocol  to  enable  him 
to  come  before  the  Commission  in  the  capacity  of  a  claimant. 

It  is  not  contended  by  the  United  States  that  Mr.  Bance,  the  receiver 
in  bankruptcy,  is  entitled  to  an  award  personally  but  only  as  the  rep- 
resentative of  the  American  creditors  of  Ernesto  Capriles.  We  do 
not  think  that  it  is  necessary  to  discuss  this  proposition  further. 

II.  In  the  answer  of  Venezuela  it  is  further  asserted  that  the  Com- 
mission lacks  sufticient  information  to  fix  the  pro  rata  which  would 
belong  to  the  American  creditors  so  long  as  the  proceedings  in  bank- 
ruptcy are  pending. 

In  reply  to  this  the  United  States  presents  herewith  an  affidavit  of 
Mr.  Bance,  the  receiver  in  bankruptcy,  showing  that  a  full  and  com- 
plete list  of  the  creditors  of  Ernesto  Capriles  has  been  submitted  to 
the  Commission;  that  in  the  event  of  the  payment  of  the  treasury 
order  for  200,000  bolivars  more  than  sufficient  funds  will  be  realized 
to  pay  all  of  the  creditors  in  full;  that  approximately  25  per  cent  has 
already  been  paid  to  these  creditors,  and  showing  accurately  the  exact 
amount  still  owing  to  the  American  creditors.  We  submit  that  this 
information  is  sufficient  to  enable  the  Commission  to  make  an  award 
for  the  benefit  of  these  creditors,  and  that  an  award  should  be  made 
in  accordance  with  the  amounts  indicated. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


REPORT  OF  ROBERT  C.  MORRIS.  383 

The  United    States   and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ] 
of  J.  B.  Bance,  receiver  in  bankruptc}^  of  j 
Ernesto  Capriles,  for  the  benefit  of  Weeks, 
Potter  &  Co.,  Seabury  &  Johnson,  and  John-  j-  No.  35. 
son  &  Johnson,  American  citizens,  claimants, 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  b}'  Doctor  Paul,  Commissioner. 

The  Commission  dismisses  the  claim  for  want  of  jurisdiction  with- 
out prejudice  to  the  claimant  as  representative  of  the  creditors  of 
Capriles  in  his  capacit}-  of  receiver. 

September  22,  1903. 

The  United  States   and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 
of  J.  B.  Bance,  receiver  in  bankruptcy  of 
Ernesto  Capriles,  for  the  benefit  of  Weeks, 
Potter  &  Co.,  Seabury  &  Johnson,  and  John-   -  No.  35. 
son  &  Johnson,  American  citizens,  claimants, 

V. 

The  Republic  of  Venezuela. 

Doctor  Paul,  Covimissio^ier. 

Dr.  J.  B.  Bance,  as  receiver  in  the  bankruptcy  of  Ernesto  Capriles, 
claims  from  the  Government  of  Venezuela,  on  behalf  of  Weeks,  Pot- 
ter &  Co.,  Seabur}^  &  Johnson,  and  Johnson  &  Johnson,  American 
creditors  of  this  bankruptcy,  the  sum  of  15,576  bolivars,  which  is  the 
proportionate  amount  corresponding  to  them  in  a  credit  of  200,000 
bolivars  held  by  Capriles  against  the  Venezuelan  (ioverninont,  which 
credit  is  now  judicially  in  the  hands  of  the  receiver  for  its  collection. 

The  failure  onl}^  deprives  the  bankrupt  party  of  the  administration 
of  his  property,  which  then  goes  to  his  creditors  represented  by  the 
receiver,  but  in  no  way  does  it  alter  the  essence  of  the  property, 
rights,  and  actions,  which  continue  to  belong  to  the  said  bankrupt 
until  an  agreement  is  arrived  at,  and,  failing  this,  until  tiic  final 
liquidation  and  adjudication  of  the  property  among  the  creditors  in 
proportion  to  their  claims  and  according  to  theii-  rank  as  judicially 
classified. 

Ernesto  Capriles  being  a  Venezuelan,  all  his  property,  rights, 
actions,  and  liabilities  in  the  })ankruptcy  case  are  governed  by  the 
Venezuelan  law  and  are  subject  to  the  procedure  and  decision  of  the 
tribunal  under  which  the  bankruptcy  is  invc^stigated. 

The  receiver,  representing  the  creditors,  only  acts  as  administrator 
of  the  property  of  the  bankrupt  party,  and  it  is  not  possible  to  consider 
any  individual  credits  from  the  total  estate  as  the  private  property  of 
an}^  one  creditor. 


384  REPORT  OF  ROBERT  C.  MORRIS. 

For  the  abovo-mcntioncd  reasons  the  collection  of  a  cucdit  originally 
owned  and  still  owned  bv  a  Venezuelan  citizen  can  not  l)c  admitted 
before  this  Commission,  and  therefore  this  claim  must  bo  dismissed  for 
M'ant  of  jurisdiction,  without  prejudice  to  the  claimant  as  representative 
of  the  creditors  of  Capriles,  in  his  capacity  of  receiver. 

The  United  States   and  Venezuelan  Claims   Commission,    sitting  at 

Caracas,  Venezuela. 

DECISION. 

The  United  States  of  America  on  behalf 
of  J.  B.  Banco,  receiver  in  bankruptcy  of 
Ernesto  Capriles,  for  the  benefit  of  Weeks, 
Potter  &  Co.,  Seabury  &  Johnson,  and  John-  1-  No.  35. 
son  &  Johnson,  American  citizens,  claimants, 

V. 

The  Republic  of  Venezuela. 

The  above-entitled  claim  is  hereby  dismissed  for  want  of  jurisdic- 
tion, without  prejudice  to  the  claimant  as  representative  of  the  cred- 
itors of  Capriles  in  his  capacity  of  receiver. 

William  E.  Bainbridge, 

Cotmnissioner  on  the  j)art  of  the  United  States  of  America. 

J.  DE  J.  Paul, 

Coinmissioner  on  the  'part  of  Venezuela. 

Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  part  of  Venezuela. 

KUDOLF   DOLGE, 

Secretary  on  the  part  of  the  United  States  of  America. 
Delivered  September  22,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Feb- 

ruar3^  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  George  W.  Upton,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  36. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of 
the  claimant,  and  was  supported  at  the  time  of  presentation  by  the 
agent  of  the  United  States  in  an  oral  argument.  A  brief  was  filed  by 
the  agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent 
of  the  United  States  in  replication. 


REPOKT  OF  ROBERT  C.  MORRIS.  385 

[Translation.] 

George  W.  Upton  | 

V.  V  Claim  No.  36. 

Venezuela.         ) 

ANSWER. 

Honorable  merabers  of  the  Venezuelan- American  Mixed  Commission.: 
The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 

the  claim  presented  by  George  W.  Upton,  and  respectfull}^  shows  to 

the  tribunal: 
The  present  claim  is  founded  on  six  distinct  points,  that  is  to  say: 

(1)  The  claimant  alleges  that  the  Commission  should  decide  that  the 
contract  which  he  has  made  with  the  Government  of  Venezuela  for  the 
clearing  out  and  navigation  of  the  river  Tocuyo,  is  in  full  force  and 
effect. 

With  respect  to  this  first  point  of  the  demand,  it  ought  to  be 
observed  that,  as  the  interested  party  himself  says,  the  Government  of 
Venezuela  up  to  the  present  date  has  always  been  disposed  to  recog- 
nize and  has  effectively  recognized  the  obligations  which  arise  out 
of  said  contract.  There  does  not  exist,  therefore,  any  contention 
upon  this  point;  it  is  clear  that  there  is  no  right  to  claim'  As  to  this 
point  the  Commission  would  lack  authority  to  render  a  judgment  in 
the  manner  indicated. 

(2)  The  second  point  of  the  demand  refers  to  an  indemnit}'  due  on 
account  of  \hQ.\Axyx\Q)L\  Protector^  which  it  is  said  was  taken  and  rendered 
useless  by  Venezuelan  authorities. 

Concerning  this  point  it  is  to  be  observed  that  the  claimant  has  lim- 
ited himself  to  proving  the  cost  of  the  property  lost,  but  in  no  manner 
proves  the  facts  constituting  the  responsibility  which  might  on  account 
of  them  affect  the  Venezuelan  Government,  which  ought  to  be  established 
especially  and  minutely. 

(3)  The  third  point  limits  itself  to  the  loss  of  the  steel  lighter  which 
the  claimant  had  in  the  harbor  of  Puerto  Cabello,  and  whicTi  ho  alleges 
was  taken  awa}"  from  him  b}^  the  military  authorities  of  said  city  in 
order  that  it  might  be  used  in  the  defense  of  that  place  in  the  vear 
1892. 

Upon  this  subdivision  of  the  claim  the  same  observation  as  that 
concerning  the  second  may  be  made.  Besides,  even  in  the  case  the 
fact  be  considered  proved  that  the  Venezuelan  authorities  have  dis- 
posed of  said  lighter,  it  does  not  appear  that  the  use  which  they  made 
of  it  gave  rise  to  its  loss. 

(4  and  5)  The  fourth  and  fifth  points  limit  themselves  to  tlic  loss 
of  the  steamer  Parupano,  the  fixtures  and  tools  which  it  contained, 
besides  575  sacks  of  coffee  which  were  on  boai-d  of  it  ready  for  trans- 
portation. 

Concerning  this  point  the  claimant  docs  not  pi-ov(>  cithrrthc  luaniu'r 
in  which  the  aljove-mentioned  steamer  was  lost,  what  people  occasioned 
its  loss,  or  if  the  coffee  lost  belonged  to  him  by  right  or  its  valu(>  \yas 
afterwards  claimed  from  him  by  the  true  owners.  The  declaration 
which  in  this  respect  is  j^roduced  of  Frederick  E.  Cavanaiigh  can  liavo 
no  weight  as  evidence  since  the  afliant  is  interested  in  the  claim. 

(0)  With  reference  to  the  sixth  point  arising  out  of  the  losses  occa- 
sioned by  the  desertion  of  thecoloni.sts,  it  is  entirely  unjustilial»l<'  since 

S.  Doc.  317,  58-2 25 


380  REPORT  OF  ROBERT  C.  MORRIS. 

it  attempts  to  recover  from  Venezuela  (lama{:fes  suffered  by  foreign 
interests  on  aceount  of  the  civil  war,  wiiicli  in  the  first  place  caused 
his  ruin.  Concernino-  this  poijit  the  undersig'ned  ouo-ht  to  renew  the 
arguments  ofi'ered  in  prioi-  analogous  claims  in  order  to  prove  that 
public  law  docs  not  permit  of  an  action  on  account  of  this  soi'tof  dam- 
ages. In  fact  it  is  a  principle  that  foreigners  who  settle  in  a  country 
accept  from  that  time  all  tiie  eventualities  to  which  said  countr}'  is  sub- 
ject, amongst  which  should  be  included  civil  war.  (See  Fiore,  Public 
International  Law,  par.  675,  vol.  1,  p.  583;  Calvo's  Int.  Law,  par.  363, 
Vol.  I,  p.  434;  Pradier  Fodere,  sec.  205,  p.  343,  Vol.  I,  Int.  Law,  and 
the  notes  of  Count  de  Neselrode  of  the  2d  of  May,  1850,  and  of  Prince 
Schwartzemberg  of  April  14,  1850.) 

For  the  reasons  given  the  claim  should  be  disallowed  in  all  its  parts. 

Caracas,  July  25,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission,  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 

of  George  W.  Upton,  claimant,  I  -j^     og 

V.  I        *      ' 

The  Republic  of  Venezuela.  J 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  answer  of  Venezuela  in  the  above-entitled  matter  objection  is 
made  to  the  insufficienc,y  of  the  proof  in  support  of  the  claim  of  Mr. 
Upton  for  the  loss  of  the  launch  Protector  and  of  the  hull  of  the  steel 
lighter,  which  were  his  personal  property,  at  Puerto  Cabello. 


The  loss  of  the  launch  Protector  occurred  in  March,  1900,  when  the 
Government  of  Venezuela,  acting  through  Gen.  Federico  C.  Escarra, 
took  possession  of  the  launch  for  the  purpose  of  transporting  it  on 
flat  cars  to  the  Lake  of  Valencia,  where  it  was  to  be  armed  as  a  gun- 
boat to  destroy  a  steamer  in  possession  of  the  revolutionists.  While 
attempting  to  lift  the  launch  on  to  flat  cars  at  Puerto  Cabello  its  keel 
was  broken  and  its  sides  crushed  in,  so  that  it  became  absolutely  use- 
less. Thereupon  General  Escarra  advised  the  representative  of  the 
claimant  that  the  Government  could  not  use  the  launch  and  placed  it 
at  the  disposal  of  its  owner. 

On  May  5,  1900,  a  payment  of  320  bolivars  was  made  to  the  repre- 
sentative of  the  claimant  b}^  the  Government  to  cover  the  expense  of 
removing  the  launch  to  a  safe  place,  where  it  has  remained  useless 
ever  since.  A  further  payment  of  160  bolivars  was  made  on  May  16, 
1900,  to  the  representative  of  Mr.  Upton,  on  account. 

In  support  of  this  item  of  the  claim  the  correspondence  between 
the  representatives  of  Mr.  Upton  and  General  Escarra  is  herewith 
submitted. 


REPORT  OF  ROBERT  C.  MORRIS.  387 

II. 

The  facts  regarding  the  loss  of  the  lighter  are  that  tne  Government 
of  Venezuela,  acting  through  Gen.  Daniel  S.  Valero,  in  the  month  of 
August,  1002,  took  possession  of  the  lighter,  which  was  stored  in  the 
3'ard  of  the  Electric  Light  Company  at  Puerto  Cabello,  caused  it  to  be 
tilled  with  bags  of  sand,  and  then  made  use  of  it  as  a  barricade  against 
the  revolutionists.  A  protest  was  made  by  the  representative  of  Mr. 
Upton  against  such  use  of  the  lighter,  but,  notwithstanding  the  pro- 
test, it  was  used  as  a  defense  and  was  destroyed.  The  hull  was  burst 
and  the  decks  broken,  so  that  it  became  absolutely  valueless.  The 
representative  of  Mr.  Upton  thereupon  instituted  proceedings  before 
the  court  of  first  instance  of  the  second  judicial  district  in  Puerto 
Cabello  to  establish  the  amount  of  injury  done  to  the  lighter.  A  copy 
of  the  proceedings  before  this  court  are  herewith  submitted  in  evi- 
dence, and  they  prove  conclusiveh^  that  the  damage  was  occasioned  in 
the  manner  stated  and  that  the  lighter  was  rendered  absolutely  useless. 

III. 

In  regard  to  the  loss  of  the  steamer  Parupano  and  the  575  sacks  of 
coffee,  we  submit  that  the  affidavit  of  Mr.  Cavanaugh,  in  the  absence 
of  any  proof  to  the  contrar}^,  is  sufficient  to  establish  the  loss. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United   States   and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 


No.  36. 


The  United  States  of  America  on  behalf 
of  George  W.  Upton,  claimant, 

V. 

The  Republic  of  Venezuela. 

decision  and  award. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  awards  to  the  claimant  the  sum  of  $5,376.25,  United 
States  gold. 
September  25,  1903. 

The   United    States   and  Venezuelan  Claims  Commission,    sitting    at 

Caracas,  Venezuela. 

The   United  States  of  America  on  behalf  | 

of  George  W.  Upton,  claimant,  '  j^r^,   ;.>(; 

V.  \       '  '    ' 

The  Rei'ublic  of  Venezuela.  J 

Bainbridge,  CommiHsiomn' : 

On  December  23,  1S92,  the  Government  of  Venezuela  granted  :i  eon 
cession  to  Jose,  Trinidad  Madriz  for  the  "canalizaeion  y  navigaeion 
por  vapores  calado  del  Kio  Toeuvf..'^  and  on  the  day  lollowmg  Madnz 


;i88  REPUKT    OK    K015KKT    ('.    MoKUIS. 

assigned  said  contract-  and  concession  to  Jose  Rafael  Ricart.  On  Ma}^ 
1,  1897,  the  claimant  liennn,  a  native  citizen  of  the  United  States, 
bouiiht  from  Ricart,  previously  authorized  by  the  Government  to 
make  tiie  transfer,  said  concession  and  all  rights  and  privilej^es  con- 
nected therewith  and  oranted  there})y.  It  is  allej^-ed  that  all  the  fore- 
going- instruments  were  duly  recorded  as  pro^•ided  by  law. 

The  claimant  avers  that  the  concession  referred  to  is  of  great  value, 
to  wit,  more  than  one  million  dollars;  and  that  if  in  the  future,  by 
reason  of  insurrection  or  other  cause,  the  Government  of  Venezuela 
shall  violate  the  terms  of  said  contract,  or  revoke  it  in  fact  or  by 
obstruction  to  its  operation,  he  would  be  damaged  in  that  sum.  He 
states,  however,  that  he  has  heretofore  ever  found  the  Government 
inclined  to  recognize  and  in  fact  recognizing  its  obligations  under  and 
the  validity  of  said  contract.  He  alleges  that  he  has  fully  complied 
with  all  the  terms,  conditions,  and  requirements  of  the  concession  on 
his  part. 

He  asks  as  a  preliminary  item  of  his  claim  that  this  Commission 
shall  establish  as  of  record  for  the  future  the  fact  and  decision  con- 
firming the  acts  of  memorialist  and  directing  the  Government  of 
Venezuela  to  make  acknowledgment  upon  its  official  records  of  his 
compliance  with  the  terms  of  the  contract. 

In  regard  to  this  item  of  the  claim,  it  is  sufficient  to  state  that  the 
Commission  has  no  jurisdiction  to  grant  the  relief  asked.  It  is  clearly 
not  a  "claim"  within  the  meaning  and  intent  of  the  protocol  of  Feb- 
ruary IT,  1903,  constituting  this  Commission. 

The  remaining  items  of  the  claims  are  enumerated  as  follows: 

(a)  Loss  of  the  launch  Protector $3,500.00 

h)  Loss  of  steel  lighter , 4,002.25 

(c)  Loss  of  steamer  Pnrupano 8,  714.  75 

{d)  Loss  of  575  sacks  of  coffee  and  all  chattels  at  El  Salto  de  Diablo 10, 015.  00 

(e)  Loss  of  money  by  expulsion  of  colonists 3,988.43 

30, 220. 43 

(a)  The  steam  launch  Protector  was  bought  by  the  claimant  for  his 
use  in  making  trips  from  Puerto  Cabello  to  the  Tocuy o  River  and  along 
the  coast,  and  had  been  thus  used  for  a  year  or  more.  The  boat  was  40 
feet  long,  8i  feet  beam,  and  3i  feet  draft.  In  1900,  while  the  claimant 
was  in  the  United  States,  certain  revolutionists  armed  and  equipped 
a  steamer  on  Lake  Valencia  and  used  her  to  molest  the  Government, 
whereupon  Gen.  Federico  Escarni,  administrator  of  the  maritime  cus- 
toms at  Puerto  Cabello,  seized  the  Protector^  against  the  protest  of 
claimant's  agent,  for  the  purpose  of  putting  her  on  flat  cars  on  the 
English  railroad  to  take  her  to  Lake  Valencia,  where,  armed  with 
Government  guns  and  troops,  she  was  to  be  used  against  the  steamer 
of  the  revolutionary  party.  In  transporting  the  launch  to  the  railway 
she  was  so  badl}^  damaged  by  careless  or  inefficient  handling  as  to  be 
rendered  totally  useless.  Claimant  alleges  that  she  could  not  be 
repaired  at  Puerto  Cabello,  and  that  although  he  has  diligently  endeav- 
ored to  do  so,  he  has  been  unable  to  sell  the  boat  or  any  part  thereof, 
and  he  claims  for  her  destruction  the  sum  of  $3,500. 

It  appears  from  the  evidence  that  the  Government  paid  the  expenses 
of  removing  the  laimch  from  the  streets  of  Puerto  Cabello  to  a  vacant 
lot  where,  it  is  alleged,  the  boat  has  reniained  absolutely  useless  ever 
since. 


REPORT  OF  ROBERT  C.   MORRIS.  389 

The  seizure  of  the  hiumli  uui}"  luive  been  justified  by  the  necessities 
of  the  state,  l)ut  it  was  a  taking-  of  private  propert}^  for  public  use  and 
involved  the  obligation  of  just  compensation  to  the  owner.  The  evi- 
dence is  sufficient  as  to  the  fact  of  the  taking-  of  the  boat,  and  that  as  a 
result  thereof  it  was  rendered  useless.  But  as  the  launch  appears  to 
have  some  value,  and  as  it  still  remains  the  property'  of  the  claimant,  an 
award  of  ^3,000,  with  interest  thereon  at  3  per  cent  per  annum  from 
October  15,  1900,  to  December  31,  1903,  is  hereb}'  made  as  compen- 
sation for  the  loss  or  damage  sustained  b}'  the  claimant  upon  this  item. 

(h)  The  claimant  states  that  he  is  the  owner  of  a  duplicate  steel  hull 
with  boiler,  intended  for  a  flat-bottomed  stern-wheel  steamer  or  for  use 
as  a  lighter,  which  was  in  1902  mounted  on  blocks  and  covered  in  the 
3^ard  of  the  Electric  Light  Company  at  Puerto  Cabello.  In  Jul}^  of 
that  5"ear  the  military  authorities  of  the  Government,  in  order  to  resist 
an  attack  by  revolutionists  upon  the  the  city,  constructed  a  line  of  bar- 
ricades, and  finding-  the  said  hull  near  the  line  of  defense  filled  it  with, 
and  piled  thereon  and  about  it,  stones,  rocks,  and  sand  of  great  weight. 
It  was  discovered  later  that  the  -sveight  thus  put  upon  it  greatlv  dam- 
aged the  hull,  and,  upon  complaint  of  the  agent  of  the  claimant,  the 
stones,  sand  bags,  etc.,  were  removed  by  the  Venezuelan  authorities. 
Memorialist  asserts  that  said  hull  was  rendered  useless,  and  that  with 
out  it  the  boiler  is  a  complete  loss,  and  he  asks  an  award  in  the  sum  of 
$4,002.25. 

The  evidence  of  various  parties  cognizant  of  the  facts  is  presented 
showing  the  condition  of  the  hull  prior  to  its  being  used  in  the  man- 
ner and  for  the  purpose  above  described  and  the  injury  sustained,  the 
witnesses  stating  that  the  hull  was  rendered  useless  for  the  purpose 
for  which  it  was  intended  and  that  the  repairs  will  cost  as  much  as  to 
build  a  new  one. 

The  same  principle  is  applicable  here  as  in  the  foregoing  item.  The 
right  of  the  state,  under  the  stress  of  necessity,  to  appropriate  private 
property  for  public  use  is  unquestioned,  but  ahvays  with  the  corre- 
sponding obligation  to  make  just  compensation  to  the  owner  thereof. 
It  is  believed,  however,  from  all  the  evidence  here  presented,  that  the 
sum  of  1^2,000,  with  interest  thereon  at  3  per  cent  per  annum  from 
July  15,  1902,  to  December  31, 1903,  will  fully  compensate  Mr.  Tpton 
for  whatever  loss  or  damage  he  has  sustained  on  this  item  of  his  chiim. 

As  to  the  remaining  items  of  this  claim,  it  is  evident  from  the 
claimant's  own  statement  that  the  losses  set  forth  in  his  memorial  arose 
from  the  disturbed  condition  of  the  country,  due  to  the  civil  war  then 
existing  in  Venezuela,  and  not  from  any  acts  of  tiic  N'enezuelan  (Gov- 
ernment or  its  agents  specially  directed  against  tiic  claimant  or  his 
property.  Under  these  circumstances  the  claimant's  privdcges  and 
immunities  were  not  ditterent  from  those  of  other  inhabitants  of  the 
country.  He  must  be  held,  in  going  into  a  foieign  country,  to  have 
voluntarily  assumed  the  risks  as  well  as  the  advantiges  of  his  resi- 
dence there.  Neither  claimant  nor  his  property  can  be  exempted  from 
the  evils  incident  to  a  state  of  war  to  which  all  other  persons  an<l 
property  within  the  same  territory  were  exposed.  As  to  these  items, 
therefore,  the  claim  must  bi;  disallowed. 


IWM)  RKroKI'  «>K  UOHKRT  C.  MOKKIS. 

The  United   States  ami  N'euezuelan  Claims    Commission,  sitting  at 

Caracas,  Voiio/uela. 

AWARD. 

Jn  re  the  cUiim  of  the  United  States  of  America,  on  behalf  of 
(leorge  W.  Upton,  against  the  Kei)uhlic  of  Venezuela,  No.  36,  the 
sum  of  tive  thousand  three  hundred  sev^enty-six  and  25/100  dollars 
(^5,370.25),  United  States  gold,  is  hereby  awarded  in  favor  of  said 
claimant,  which  sum  shall  be  paid  b}-  the  Government  of  Venezuela  to 
the  Government  of  the  United  States  of  America,  in  accordance  with 
the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Co^ntnissionei'  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  iMTt  of  Yeneziiela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  jjart  of  Venezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  September  25,  1902. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  Mauricio  Berrizbetia,  claimant,  I N     ^7 

V. 

The  Republic  of  Venezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  tiled  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of  the 
United  States  in  replication.     The  claim  was  subsequently  withdrawn, 

[Translation.] 

Mauricio  Berrizbetia  ) 

V.  \  Claim  No.  37. 

Venezuela.  ) 

ANSWER. 

Honorable  members  of  the  Venezuelan- American  Mixed  Commission : 
The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 

the  claim   of   Mauricio  Berrizbetia,   and  respectfully  shows  to   the 

Commission: 

The  facts  upon  which  the  claim  of  the  said  Berrizbetia  is  founded 


REPORT  OF  ROBERT  C.  MORRIS.  3^1 

appear  to  be  proved  by  means  of  a  deposition  taken  without  notice  lo 
the  party  against  whom  it  operates.  It  is  to  })e  noted  that  amoncst 
the  items  which  make  up  the  claim  there  is  one  marked  No.  S.  whTcli 
can  by  no  means  be  allowed.  In  line,  it  arises  out  of  the  value  of  a 
horse  which  was  taken  away  from  the  claimant  by  revolutionary  forces 
and  afterwvards  secured  by  those  of  the  Government  under  the  com 
mand  of  Colonel  Moros.  In  order  that  the  responsibility  of  the 
Government  might  have  been  established,  it  would  be  necessary  to 
furnish  proof  that  the  commander  of  said  forces  knew  the  proprietor 
and  that  notwithstanding  his  remonstrances  refused  to  return  the 
animal  to  him;  this  proof  does  not  exist. 

As  to  the  other  values  reclaimed  they  have  been  estimated  arbitrarily 
b}^  the  interested  party  himself. 

The  Commission,  in  the  spirit  of  equity  which  distinguishes  its 
honorable  members,  will  decide  concerning  this  claim,  presented  in 
circumstances  adverse  to  Venezuela,  by  an  individual  who  calls  him- 
self an  American  citizen  because  he  was  accidentally  born  in  New 
York,  and  who  is  the  son  of  Venezuelan  parents,  having  his  interests 
in  Venezuela  and  habitually  residing  therein. 

Caracas,  July  24,  1903.  ^ 

F.  Arroyo  Pare.to. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Mauricio  Berrizbetia,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  37. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

In  the  answer  of  Venezuela  in  the  above-entitled  matter,  the  only 
substantial  objection  raised  to  the  claim  for  damages  and  pi-operty 
taken  is  in  regard  to  the  eighth  item,  which  consists  in  achiim  ariiount- 
ing  to  200  bolivars,  for  the  value  of  a  horse  taken  from  tiie  claimant 
last  February  by  the  revolutionary  forces  under  CJuigue,  from  \\  hom 
it  was  in  turn  taken  by  Col.  Marco  Antonio  Morros  conunanding  the 
forces  of  the  regular  government.  It  is  contended  that,  in  order  to 
place  responsibility  upon  the  Government  of  Venezuela,  th(>  claimant 
should  have  made  known  to  the  officer  commanding  th(>  regidar  forces 
that  he  was  the  owner  of  the  horse  and  should  have  demanded  the 
return  of  the  animal  to  him. 

It  may  be  that  the  claimant  did  not  take  tiie  course  suggested, 
although  such  can  liardly  be  presumed,  but  whether  he  did  or  did  not 
make  a  claim  at  the  time  the  horse  was  taken  for  its  return  or  for  its 
value,  he  has  now  made  the  necessary  demand  on  the  Govciinncnt  of 
Venezuela  in  his  memorial  presented  to  this  C-onnnission,  and  he  is 
entitled  either  to  have  the  horse  returned  to  him  with  suitable  com 
pensation  for  its  use  or  to  have  its  value. 


892  REPORT    OK    KOHKRT    ('.    MORRIS. 

The  answer  of  \'onc/uela  says: 

Tho  Coinmii^sion,  in  the  ppirit  of  (M]nit y  wliicli  (listin<^nishes  its  honnrahh'.  members, 
will  doi'ide  (•oncerninj;  this  claim,  in-csonted  in  circumstam'fs  udverse  to  Venezuela, 
l>y  an  indiviihial  who  calls  himself  an  American  citizen  because  he  was  accidentally 
horn  in  New  York,  and  who  is  the  son  of  Venezuelan  parents,  having  his  interests 
in  Venezuela  and  habitually  residing  therein. 

While  this  does  not  directly  challenge  the  citizenship  of  the  claimant 
we  consider  it  desirable  to  discuss  this  point  and  to  call  the  attention 
of  the  Commission  to  the  facts  of  the  claim  in  this  particular  and  to 
the  law  of  Venezuela. 

The  claimant  was  born  in  New  York  in  18()1,  as  is  evidenced  by  the 
baptismal  certihcate  heretofore  tiled  with  the  Commission.  The  claim- 
ant tiled  this  certificate  in  the  United  States  consulate  at  Puerto  Cabello, 
and  it  constitutes  a  part  of  the  consular  records  as  appears  by  the  cer- 
tificate of  W.  H.  Volkmar,  the  vice-consul  at  that  place.  From  this 
act  of  the  claimant  in  recording  this  instrument  it  is  apparent  that  he 
desired  to  establish  his  status  as  a  citizen  of  the  United  States.  As  to 
the  question  of  citizenship,  viewed  from  the  standpoint  of  Venezuelan 
law,  we  refer  to  articles  15  and  16  of  the  codigo  civil,  which  read  as 
follows: 

Art.  15.  Las  personas  son  venezolanas  6  extranjeras. 

Art.  16.  Son  venezolanos  los  que  la  constitucion  de  la  E.upubli(^  declara  tales. 

The  constitution  of  the  Republic  declares  in  Title  III,  section  1, 
article  8: 

Art.  8°.  Los  venezolanos  lo  son  jjor  nacimiento  6  por  naturalizacion. 

(a)  Son  venezolanos  por  nacimiento:     *    *    * 

2.  Los  hijos  de  padre  6  madre  venezolanos  por  nacimiento  que  nazcan  en  el  extran- 
jero,  siempre  que  al  venir  al  pais  se  domicilien  en  el  y  declaren  ante  la  autoridad 
competente  la  voluntad  de  serlo. 

Also  article  9: 

Art.  9°.  La  manifestacion  de  voluntad  de  ser  venezolano  debe  hacerse  ante  el 
registrador  principal  del  Estado  en  que  el  manifestante  establezca  su  domicilio,  y 
aquel,  al  recibirla,  la  estenderd  en  el  protocolo  respectivo,  y  enviara  copia  de  ella,  al 
Ejecutivo  Federal  para  su  publicacion  en  la  Gaceta  Oticial. 

The  claimant  has  not  taken  the  course  prescribed  by  law  to  become 
a  citizen  of  Venezuela,  but,  on  the  contrary,  has  clearly  manifested 
his  intention  of  remaining  a  citizen  of  the  United  States  by  his  act  of 
registration  in  the  United  States  consulate  above  set  forth. 

We  submit  that  an  award  should  be  made  for  the  full  amount  claimed. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 

of  Mauricio  Berrizbetia,  claimant, 

v. 

The  Republic  of  Venezuela. 


No.  37. 


Your  Honors:  I  am  just  in  receipt  of  a  letter  from  the  legation  of 
the  United  States  in  this  city  stating  that  Mr.  Mauricio  Berrizbetia 
has  withdrawn  the  claim  which  has  been  presented  to  this  honorable 


REPORT  OF  ROBERT  C.   MORRIS.  398 

Commission  by  the  United  States  of  America  on  his  behalf,  and 
instructing  me  to  take  formal  action  for  its  withdrawal.  In  conse- 
quence, 1  hereby  formally  withdraw  claim  No.  37  from  the  further 
consideration  of  the  Commission. 

Very  respectfully,  Robert  C.  Morris, 

Agent  of  the  United  Staters. 
Caracas,  Venezuela,  August  22,  1903. 


Before  the  Mixed  Commissi'on  organized  under  the  protocol  of  Febru- 
ary 17,  1903.  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 

of  Virgilio  del  Genovese,  claimant,  I  ^     oo 

The  Republic  of  Venezuela. 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

This  claim  primarily  arises  from  a  breach  of  a  contract  entered  into 
between  the  beneficial  claimant,  Genovese,  and  tlie  respondent  Govern- 
ment, on  the  26th  of  January,  A.  D.  1897,  for  the  construction  of  cer- 
tain public  works  in  the  city  of  Caracas.  The  claimant  entered  upon 
the  construction  of  the  prescribed  work,  and,  with  the  exception  of  a 
number  of  enforced  dela3^s,  brought  about  contrary  to  the  terms  and 
spirit  of  the  contract  by  the  respondent,  prosecuted  the  same  dili- 
gently until  the  27th  day  of  June,  A.  D.  1903,  when,  because  of  the 
long-continued  breach  of  the  obligations  of  the  contract  on  the  part  of 
Venezuela  in  the  neglect  and  refusal  to  pay  to  Genovese  sums  long 
overdue  for  work  completed  and  acccepted,  the  latter,  worn  out  with 
the  apparently  hopeless  struggle  against  adverse  situations,  broken  in 
health,  and  ruined  in  credit,  notified  the  minister  of  public  works  of 
his  determination  to  discontinue  further  work.  He  having  electetl  to 
consider  the  contract  broken  for  the  long-continued  failure  on  tlie 
part  of  Venezuela  to  pay  sums  unquestionably  due,  the  United  States 
presents  and  urges  before  this  high  Conmiission  Genovese's  claim: 

(1)  For  compensation  for  the  damages  wrought  upon  him  by  sucli 
failure. 

(2)  In  addition  to  the  claim  for  damages  arising  from  the  express 
terms  of  the  contract  itself,  the  United  States  also  presents  on  (Jeno- 
vese's  behalf  a  claim  for  incidental  damages  growing  out  of  the  wrong- 
ful manner  in  which  the  officials  of  the  respondent  interfered  with  liiiu 
and  delayed  the  prosecution  of  his  work;  and  also 

(3)  For  the  forcible  taking  and  carrying  from  him  of  certain  nmlcs 
and  other  property,  and  the  personal  indignities  to  which  he  was  sub- 
ject in  connection  therewith. 

CLAIM  NO.  1. 

Article  3  of  the  contract  (p.  5)  provides  that  there  shall  l)c  piiid  l«» 
the  contractor,  Genovese,  the  sum  of  4f3,3r)2.!>9  bolivars  lor  llic  per 
formance  of  the  work  therein  specified,  divided  as  follows: 

UoliviirH. 

For  section  1  of  the  work '•^•|>  '♦;•/•  JJf' 

For  section  2  of  tlio  work J^l'>  ''•"'•  *"' 

For  section  .'5  of  tlic  work -"-^  •*•'"• '" 


394  Rp:iM)Rr  ok  rohkht  c.  mohris. 

Article  5  of  the  contnut  i)rovides  (p.  (i)  thut— 

the  payment  for  each  of  «iitl  facetious  shall  he  iiuide  in  weekly  quotas,  the  delivery 
of  whieh  to  the  contraetor  shall  he^in  when  the  section  treated  of  shall  have  been 
accepti'd  by  this  department,  the  oliice  of  which  shall  determine  the  amount  of  each 
of  the  said  weekly  (jnotas.  The  j)rogress  of  the  work  shall  he  regulated  by  this 
department  in  such  manner  that  the  second  section  shall  1)e  executed  whilst  the 
l)ayment  for  the  tirst  is  being  effected,  and  the  third  whilst  the  ])ayment  for  the 
second  continues,  but  the  payment  for  no  section  shall  begin  until  the  preceding 
shall  have  been  liquidated. 

The  first  section  of  the  work  was  completed  by  the  contractor  in 
accordance  with  the  provisions  of  the  contract  as  modified  by  the 
executive  decree  of  December  22,  18!»7  (Exhibit  B),  and  was  subse- 
(luently  accepted  by  the  department  of  piil)lic  works.  The  contractor 
tlum  proceeded  with  the  work  on  section  2  and  completed  the  same, 
notwithstandino-  the  failure  on  the  part  of  the  Goverment  of  Vene- 
zuela to  make  the  weekly  payments  as  agreed.  Although  the  second 
section  was  completed  and  the  department  of  public  works  notified  of 
that  fact  June  19,  1900  (Exhibit  C),  the  officials  of  that  department 
arbitrarily  delayed  the  inspection  and  official  acceptance  thereof  until 
the  3d  day  of  September  of  that  year,  when  Genovese,  acting  upon 
verbal  authorit}",  began  the  construction  of  the  third  section  (Exhibit  O^), 
which  now  lacks  but  1,000  cubic  meters  of  completion,  at  an  estimated 
cost  of  Ir.OOO  bolivars  at  the  time  Genovese  elected  to  discontinue  the 
work. 

By  article  9  of  the  contract  the  Government  reserved  to  itself  the 
right  to  modify  the  plans  of  the  work  upon  the  payment  of  the  dif- 
ferences which  resulted  from  such  modifications  "calculated  at  the 
unit  prices  established  in  the  sheet  of  conditions"  (p.  6). 

After  the  commencement  of  the  work  the  Government  altered  the 
plans  by  lengthening  the  culverts  on  sections  1  and  2  from  73  linear 
meters  to  80  linear  meters,  and  they  were  so  constructed,  the  differ- 
ence in  favor  of  the  contractor  calculated  at  the  unit  prices  established 
in  the  sheet  of  conditions  amounting  to  32,370.53  bolivars. 

The  total  amount,  therefore,  due  Genovese  for  work  done  under  the 
express  terms  of  the  contract  was  451,853.09  bolivars,  which  is  reduced 
by  payments  on  account,  as  per  statement  (Exhibit  D),  amounting  to 
61,420  bolivars — leaving  a  balance  due  on  principal  account  of 
390,433.09  bolivars. 

Interest. — On  account  of  the  wrongful  withholding  of  the  various 
sums  due  to  the  contractor  for  work  completed,  the  United  States 
claims  on  his  behalf  by  way  of  damages  interest  at  the  rate  of  3 
per  cent  per  annum,  amounting  in  the  whole  to  421,509.50  bolivars — 
the  total  amount  of  principal  and  interest  so  claimed  to  be  due  and 
affording  a  basis  of  award  in  claimant's  favor  being  411,942.59  bolivars, 
or  approximately  $82,388.51. 

CLAIM  NO.  2. 

During  the  prosecution  of  the  work,  the  contractor  was  wrongfully 
subjected  to  man}^  annoyances,  harassments  and  delays  by  the  arbi- 
trary actions  and  orders  of  the  officials  of  the  department  of  public 
works,  the  arbitrarj^  delays  amounting  to  the  loss  of  1,<>49  days'  time 
both  for  the  contractor  himself  and  his  teams  and  plant,  and  imposing 
upon  the  contractor  an  improper  and  unanticipated  expense  for  main- 
tenance. It  is  asserted  that  such  loss,  as  nearly  as  it  can  be  estimated, 
amounts  to  about  250  bolivars  or  $50  a  da}',  made  up  by  allowing  100 


REPORT  OF  ROBERT  C.   MORRIS.  395 

bolivars  or  $20  a  day  for  the  time  of  the  contractor  himself  and  150 
bolivars  or  $30  a  da}^  for  the  expense  of  caring-  for  and  maintaining 
his  plant,  including  the  stabling  and  feeding  of  his  horses  and  mules 
and  tiie  wages  of  their  necessar}'  attendants.  On  such  account,  damages 
to  the  amount  of  262,250  bolivars  or  $52,450  are  claimed. 

CLAIM  NO.  3. 

By  Exhibits  G  and  G\  being  sworn  statements  of  the  persons  whose 
names  are  signed  thereto,  itappears  that  Genovese,  on  or  about  March 
3,  1903,  having  sought  to  find  use  for  his  own  time  and  that  of  his 
unemployed  beasts  of  burden,  went  to  the  village  of  Guarenas,  within 
a  few  hours'  travel  of  Caracas,  for  the  purpose  of  ))ringing  in  certain 
sacks  of  coffee.  On  his  return  to  Caracas  he  was  twice  held  up  by 
bands  of  armed  men  who  pointed  their  rifles  at  him  and  by  threats  of 
death  compelled  him,  despite  his  protestations  and  his  assertion  of  his 
American  nationality,  to  surrender  to  them  two  mules  and  his  over- 
coat. 

From  the  receipt  given  to  him  by  the  commander  of  the  first  set  of 
armed  men.  it  would  appear  that  these  despoilers  were  in  the  service  of 
the  so-called  "Revolicion-Libertadora,"  but  even  so  the  obligation  to 
protect  persons  in  the  same  situation  with  Genovese  was  upon  the  estab- 
lished government  and  the  failure  on  its  part  either  to  protect  the 
person  and  property  of  Genovese  or  to  apprehend  his  des])oilers 
renders  such  government  liable  to  respond  in  substantial  damages. 
(Halleck,  Int.  Law.,  Ch.  XI,  sec.  4;  Vattel,  Droit  des  Gens  Lib.  II, 
Ch.  Ill,  sec.  38;  Phillemore,  Int.  Law,  Vol.  1,  sec.  168;  Dana's  Whea- 
ton,  sec.  23;  cited  in  Moore  Int.  Arb.,  vol.  2,  p.  1716,  note.) 

The  concise  statement  of  the  facts  pertaining  to  this  claim  seems  to 
be  sufficient  of  itself  to  establish  claimant's  right  to  recover  and  the 
respondent's  corresponding  liability  to  pay. 

There  would  seem  to  be  no  question  of  jurisdiction  or  disputed  law 
involved.     It  is  accordingly  respectfully  submitted  without  more. 

Respectfully  submitted. 

Robert  C.  Mokkis, 
Agent  of  the  United  States. 

[Translation.] 

ViRGiLio  DEL  Genovese  ) 

V.  VNo.  38. 

Venezuela.  ) 

ANSWER. 

Ilmwrahle  memh^s  of  theVemzuelan-Ainerican  Mixed  Commisdon: ^ 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  the  American  citizen.  Virgilio  del  (Jenovese, 
and  respectfully  infornis  this  tribunal: 

As  is  seen  from  the  report  adjoined,  made  at  the  instance  ot  the 
undersigned  by  the  office  of  the  ministcM-  of  public  works.  Mr.  Vir- 
crilio  del  Genovese  had  made  a  contract  with  the  Government,  under 
date  of  January  26,  1897,  for  the  completion  of  certain  works  in  the 
city  of  Caracas.  The  total  value  of  the  work  contracte(  l"r  is  .stipu- 
lated at  the  sum  of  413,352.91>  bolivars,  and  it  was  agreed  t()(liyi(len.e 
work  into  three  sections  called  tir.st,  .second,  and  third.  I  ho  iir.st 
ought  to  have  been  paid  for  after  its  completion  in  mon  h  y  install 
ments;  the  work  on  the  second  should  have  been  performed  during  the 


8*)(i  REPORT    OK    ROliKRT    V.    MORRIS. 

pavuuMil  lor  tin-  tiist;  and  tlnit  of  the  third  during  tho  payment  of  the 
second;  l)ut  it  was  an  ex])ress  condition  that  no  section  should  be  paid 
for,  and  thiMcfore  siiould  not  be  connnenced,  unless  tlie  preceding  one 
had  hecn  li<iuidated.  No  doubt  the  Government  in  establishing  such 
a  modus  operandi  had  in  mind  the  economic  ditRculties  by  which  it 
was  surrounded,  and  provided  for  the  possibility  of  the  extinction  of 
the  funds  destined  for  the  work,  in  order  not  to  remain  the  debtor  of 
the  contractor. 

(lenovese  began  the  work  and  completed  two  sections;  the  first  was 
accepted  by  the  Government  and  its  payment  begun;  but  the  foreseen 
circumstance  having  arrived,  it  determined  not  to  accept  the  second  so 
long  as  the  contractor  had  not  been  paid;  proceeding  thus  in  accord 
with  the  contract.  Notwithstanding  that  this  last-mentioned  individual 
well  knew  the  difficult  situation  of  the  treasury  and  that  he  had  prom- 
ised to  take  it  into  consideration,  he  hastened  to  conmience  the  third 
section,  the  second  not  having  been  received  nor  the  first  finally  paid 
for.  In  passing  it  must  be  observed  that  the  Government  was  the 
only  one  authorized  by  the  contract  to  fix  the  time  for  the  conclusion 
of  the  work.  As  a  prerequisite  to  accepting  the  second  section,  a 
report  was  wade  by  engineers  from  which  it  appeared  that  the  work 
was  not  in  conformity  with  the  general  plan,  on  account  of  which,  the 
ministry  suspended  the  payments.  As  is  seen,  therefore,  there  has 
not  been  on  the  part  of  the  Government  anything  except  a  strict  execu- 
tion of  the  agreement,  and  on  this  account  a  claim  for  damages  can 
not  be  sustained. 

Concerning  the  rest  of  the  claim,  the  work  is  done  and  the  tribunal 
can  order  that  it  be  valued  by  experts;  the  Government  will  pay 
according  to  the  estimate  made  concerning  them. 

With  reference  to  the  second  part  of  the  claim  it  appears  that  the 
damages  suffered  by  Genovese  w^ere  done  him  by  revolutionary  parties. 
The  endeavor  which  the  Government  made  to  put  down  the  anarchistic 
movement  is  well  known,  and  no  charge  on  account  of  negligence  can 
justifiably  be  made.  On  the  contrary,  all  the  responsibility  for  what 
happened  falls  on  the  claimant  himself,  Avho  could  not  be  ignorant  that 
a  portion  of  the  State  of  Bolivar  was  in  the  power  of  the  revolutionists, 
and  took  the  risk  of  going  to  Guarenas,  counting  no  doubt  upon  the 
profits  which  the  perilous  expedition  would  render  him. 

That  part  of  the  claim  ought  to  be  disallowed. 

Caracas,  July  26,  1903. 

F.  Akroyo  Parejo. 

The   United  States  and  Venezuelan  Claims  Commission,   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ^ 

of  Virgilio  del  Genovese,  claimant,  I  ^^   gg 

V.  1       "      * 

The  Republic  of  Venezuela.  J 

DECISION  AND  AWARD. 

Opinion  by  Doctor  Paul,  Commissioner. 

The  Commission  awards    to  the  claimant  the  sum  of  $70,083.28, 
United  States  gold. 
October  2,  1903. 


REPORT  OV    ROBERT  ('.  MORRIS.  3<»7 

The  United  States  and  Venezuelan  Claims  Commission,    sitting   at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 
of  Virgilio  del  Genovese,  claimant,  !  ^^ 

The  Republic  of  Venezuela. 

Doctor  Paul,  Commissioner: 

This  claim  is  based  on  a  breach  of  a  contract  entered  into  by  Virgilio 
del  Genovese,  the  claimant  herein,  and  the  Government  of  Venezuela, 
through  its  department  of  public  works,  on  the  20th  day  of  January, 
1897,  for  the  extension  of  West  Ninth  street,  in  this  city. 

The  various  items  of  the  claim  are  as  follows: 

First.  Balance  due,  under  contract,  on  account  of  sections  1  and  2, 
completed  and  accepted,  as  per  statement  of  director  of  the  bureau 

of  roads^,  etc.,  April  11,  1903 Bs.  158,704.05 

Second.  Extra  stonework  and  filling  on  sections  1  and  2  made  neces- 
sary by  increased  length  of  culverts 32,370.53 

Third.  For  work  done  to  date  of  this  claim  (June  29,  1903)  on  sec- 
tion 3  which  has  not  been  fully  completed  because  of  failure  on 
the  part  of  the  Government  of  Venezuela  to  make  payments  for 
completed  works,  as  agreed,  as  follows: 
Total  amount  agreed  to  be  paid  on  account  of 

said  section,  as  per  article  3  of  the  contract. . .  Bs.  203,  358. 51 
Less  amount  necessary  to   complete  unfinished 

portion  of  the  work 4,  000.  00 

199,  358. 51 

Fourth .  Damages  for  delays  due  to  arbitrary  stoppages  of  the  work 

by  Venezuelan  authorities  (1,049  days  at  250  bolivars  per  day) . . .  262, 250. 00 

Fifth.  Damages  for  indignities  suffered  and  loss  of    mules,  etc., 

March  2,  1903 25,000.00 

Sixth.  Interest  for  pajTuents  in  arrears  at  6  per  cent  per  annum,  as 
follows: 
Section  1,  balance  due  under.con tract  but  not  includ- 
ing extra  work,  73,074.05  bolivars,  from  March  20, 

1898,  to  date,  in  round  numbers Bs.  21, 600 

Section  2,  balance  due  under  contract  not  not  in- 
cluding extra  work,    86,630   l)olivars,   due   since 

June  19,  1900,  three  years,  in  round  numbers 15,593 

Sections  1  and  2,  extra  work  done  and  accepted  by 

Government,  amounting  to  32,370.53  bolivars 5,  826 

43, 019. 00 

Grand  total 720,702.09 

From  the  examination  of  the  documents  joined  to  this  claim  and  l)y 
the  papers  mentioned  by  the  department  of  pul)lic  works  in  its  report 
referred  to  b}^  the  honorable  agent  for  Venezuela  in  his  reply,  made 
before  this  Conunission,  the  following  facts  appear  proved: 

That  the  Government  of  Venezuela  on  January  '20,  1S97,  throind) 
the  department  of  public  works,  made  a  contract  with  Mi'.  Virgilio 
del  Genovese,  for  the  extension  of  West  Ninlli  sti-ect  of  (liis  (Mty, 
By  article  2  of  said  contract  Del  Genovese  bound  liimsclf  (o  begin  the 
work  on  the  construction  of  the  culvert  of  the  stream  ''  Les  Tinajelas" 
and  its  filling,  that  upon  completion  of  this  work  he  was  to  begin  the 
construction  of  the  culvert  of  the  stream  "  Kl  Tajuiniu"  and  its  lllling, 
and  this  second  partof  the  woi-k  completed  to  begin  that  of  the  stream 
"  Los  Padrones"  and  its  filling. 

Article  3  of  the  same  contract  stipulated  the  total  value  of  the  work 


898  REPORT    (»K    ROliERT    C.   MORRIS. 

to  1)0  exocutod  by  Del  (Jonovesc  in  the  sum  of  423,482.62  bolivars, 
distributed  iu  the  following-  way: 

Bolivars. 

Fir?t  section 133, 494. 05 

Second  section 86,  630.  00 

Third  section 203,  .358.57 

Article  5  stipulated  that  on  the  completion  of  each  section  the  con- 
tractor should  notify  the  department  of  public  works  so  as  to  obtain 
the  acceptance;  that  the  pa3'ment  of  each  one  of  the  sections  was  to 
made  by  weekly  installments,  to  beoin  when  the  completed  section  has 
})een  received  by  said  department,  the  office  of  which  should  determine 
the  amount  of  each  weekly  installment.  The  progress  of  the  work 
was  to  be  regulated  by  the  department  of  pul)lic  works  in  such  manner 
that  the  second  section  w^as  to  be  constructed  at  the  same  time  the  pay- 
ments for  the  first  were  being  made,  and  the  third  section  during  the 
pajmients  of  the  second,  but  the  payment  for  no  section  should  have 
begun  until  the  preceding  had  been  liquidated.  The  payment  for  the 
third  section  to  be  made  in  a  period  proportionate  to  that  of  the  two 
former  in  relation  to  their  respective  estimates. 

Article  8  stipulates  that  the  work  Avas  to  be  inspected  by  an  engineer 
appointed  by  the  department  of  public  works,  and  no  trenches  for 
foundations  were  to  be  tilled  in  without  the  order  of  said  employee. 

Article  9  provided  that  the  Government  reserved  to  itself  the  right 
to  modify  the  plans  and  other  conditions  of  the  work,  and  the  differ- 
ences which  such  modification  could  have  produced  in  relation  to  the 
estimate  should  be  calculated  at  the  prices  established  in  the  sheet  of 
conditions. 

By  article  10  the  Government  of  Venezuela  allowed  Mr.  del 
Genovese  the  importation  free  of  custom  duties  of  the  machines  and 
tools  required  for  the  construction  of  the  work,  and  also  granted  to 
him  the  exoneration  of  one-half  of  the  dues  of  the  breakwater  pier  at 
La  Guayra,  and  one-half  of  the  freight  on  the  La  Guayra  and  Caracas 
Railway  for  the  said  machinery  and  tools,  and  for  the  cement  to  be 
used  in  said  work. 

From  the  information  asked  b}^  the  director  of  the  section  of  roads 
and  aqueducts  of  the  department  of  public  works,  on  the  11th  of  April 
of  this  j^ear,  it  appears  that  the  Government  of  Venezuela  owes  to 
Virgilio  del  Genovese  the  sum  of  158,701.05  bolivars,  balance  of  the 
the  price  of  the  work  executed  for  the  extension  of  West  Ninth  street 
of  this  city^,  with  specification  of  the  price  of  the  sections  completed 
and  delivered  according  to  the  contract,  and  of  the  sums  received  by 
Del  Genovese  on  account  of  section  1,  as  per  the  orders  of  payment 
issued  in  his  favor  by  the  department  of  public  works  on  the  national 
treasury  and  personal  payments  made  to  Del  Genovese  by  the  said 
department. 

Mr.  Del  Genovese  found  correct  the  li(juidation  made  by  the  depart- 
ment of  public  works  of  the  balance  due  him  for  the  price  of  the  two 
sections,  first  and  second,  completed  and  delivered.  On  August  <>, 
1900,  Mr.  Del  Genovese  addressed  to  the  secretary  of  public  works  a 
note,  a  copy  of  which  has  been  presented,  in  the  following  terms: 

Caracas,  August  6,  1900. 
Citizen  Minister  of  Public  Works, 

Present: 

I  have  the  lionor  to  address  myself  to  you  in  order  to  advice  you  that,  havinj;; 
completed, since  the  19th  of  .Tune of  the  current  year,  the  work  of  the  second  section, 


REPORT    OF    ROBERT    C.   MORRIS.  399 

according  to  the  provisions  of  the  contract  which  I  celebrated  with  the  Government 
of  the  Republic,  I  complied  with  the  duty  of  communicating  game  to  that  depart- 
ment, begging  that  it  should  proceed,  as  was  natural  and  just,  to  accept  the  work, 
but  up  to  date  this  has  not  been  done  in  spite  of  all  my  exertions,  verbally  and  in 
writing,  for  that  end. 

As  it  is  now  forty-eight  days  since  said  work  was  completed,  without  its  having 
been  accepted  officially,  which  causes  me  serious  material  damages  and  moral  uneasi- 
ness, I  find  myself  in  the  indispensable  and  unavoidable  position  of  requesting  once 
more  that  you  will  be  pleased  to  order  whatever  may  be  necessary  for  the  official 
delivery  of  said  work  at  the  earliest  possible  moment. 

I  take  the  liberty.of  submitting  to  you  that  if  the  consideration  that,  in  accordance 
with  the  provisions  of  the  contract,  the  value  of  the  first  section  should  be  i)aid  to 
me  on  the  delivery  of  the  second,  this  consideration  ought  no  longer  to  delay  the 
said  acceptance,  because  my  previous  conduct  may  serve  you  as  a  guaranty  that  I 
shall  know  how  to  appreciate  the  difficult  situation  of  the  Government,  and  that  I 
shall  lend  myself  gladly  to  a  just  and  equitable  arrangement  for  the  purposes  f)f  said 
payment,  since  my  greatest  desire  is  to  begin  the  work  on  the  third  section  in  order 
to  comply  with  that  which  I  have  bound  myself  in  said  contract,  and  that  the  honor 
may  be  mine  that  this  Government,  who  has  given  so  many  proofs  of  honesty,  of 
progressive  spirit,  and  of  the  desire  to  protect  the  honest  and  industrious  people,  and 
for  which  I  have  so  much  sympathy,  may  continue  satisfied  with  me. 

It  is  not  beside  the  point  to  indicate  to  you  that,  according  to  the  weekly  reports 
which  I  have  furnished  to  your  department,  I  have  given  work  daily  to  some  forty 
laborers  who  are  waiting  for  me  to  begin  the  third  section,  in  order  to  once  more 
have  an  occupation  and  bread  for  themselves  and  their  families. 

Confident  that  all  which  I  have  submitted  will  determine  your  department  to 
accede  to  my  just  request,  believe  me, 
Your  obedient  servant. 

(Signed)  Virgimo  del  Genovese. 

It  can  be  seen  by  the  terms  of  this  letter,  the  contractor  considered, 
in  accordance  with  the  contract,  an  obstacle  for  the  acceptance  of  the 
second  section  of  the  work  by  the  department  of  public  works,  the 
fact  that  the  first  section  not  having  been  paid  for  and  by  his  own 
request  the  said  department  consented,  as  it  appears  from  the  docu- 
ments presented,  to  receive  said  second  section,  continuing  the  period- 
ical payments  to  Del  Genovese  during  the  remainder  of  1900,  19(»1. 
and  1902,  to  the  amount  of  21,600  bolivars  for  the  first  section,  as  siiowu 
b}^  the  liquidated  account. 

It  has  not  been  proved  that  there  had  been  a  breach  of  contract  on 
the  part  of  Venezuela,  as  the  delay  in  the  payment  of  the  weekly 
installments  that  should  have  been  made  to  Del  Genovese  for  the  price 
of  the  two  sections  completed  and  delivered,  were  tolerated  ))y  him, 
and,  as  it  has  already  been  stated,  he  said  to  the  Government  that  th(>, 
delay  should  not  be  a  cause  to  stop  the  acci^ptancc  of  the  second  sec- 
tion of  the  work,  his  past  conduct  being  a  guarantee  that  he  knew  how- 
to  appreciate  the  economical  difficulties  ot'  the  Government,  and  that 
he  would  gladly  accept  a  just  and  equitable  arrangement  for  the  pay- 
ment of  said  delayed  installments. 

The  circumstance  that  the  contractor  addressed  agawi  (o  the  Gov- 
ernment of  Venezuela  a  letter  dated  March  20,  of  the  current  yejir 
acknowledging  that  the  work  on  the  third  section  had  l)een  suspeii(h"d 
for  two  years  on  account  of  the  political  state  of  the  country,  and  that 
he  was  ready  to  resume  said  work,  evidently  proves  that  he  was  will- 
ing to  suspend  said  work  without  being  justilied  to  make  the  Gov- 
ernment of  Venezuela  responsible  for  a  breach  of  coiitriKl,  which  he 
now  pretends  to  establish. 

Regarding  th(;  balance  due  to  Virgilio  DeKienovese  by  Ihe  \  eiie/,iic 
Ian  Government  for  the  price  of  the  first  section  iind  Ihe  whole  price 
of  the  secend  section,  amounting  to  the  snni  of  ir,S,7(»4.(>;»  bolivars,  it, 


i()(]  KKI'OR'I'    OK    KOIJKUT    ('.    MORKIS. 

appears,  as  sIidwm  in  an  acc-ouiit  fuinishod  to  Mr.  del  (xenovese,  under 
date  of  April  11,  1908,  l)y  the  director  of  the  hureau  of  roads,  etc., 
in  the  department  of  public  works,  that  the  Government  of  Venezuela 
admitted  to  be  due  to  the  claimant  the  said  sum  of  158,704.05  bolivars 
to  that  date. 

From  (he  evidence  presented  by  the  memorialist,  it  is  proven  that 
some  extra  work  in  the  sum  of  32,370.53  bolivars,  specified  in  the  affi- 
davit sworn  to  by  the  civil  engineer,  J.  Duch,  executed  by  the  con- 
tractor at  the  unit  price  specified  in  the  sheet  of  conditions,  really 
amounts  to  that  sum  and  must  be  allowed. 

From  the  documentary  evidence  presented  by  the  claimant,  and  also 
from  the  other  documents  recorded  in  the  department  of  public  works, 
which  has  been  put  at  the  disposal  of  this  Commission  for  its  exami 
nation,  it  is  apparent  that  said  department  of  public  works  was 
informed  by  Del  Genovese  several  times  that  he  had  prosecuted  the 
work  in  its  third  section,  and  specially  in  his  note  of  March  16,  1903, 
he  informed  the  secretary  of  public  works  that  on  that  date  the  work 
on  the  third  section  had  been  resumed.  There  exists  in  the  record 
some  orders  from  the  secretary  of  public  works,  authorizing  Del 
Genovese  to  introduce  free  of  duties  a  number  of  barrels  of  cement  to 
be  employed  in  the  execution  of  the  third  section  of  the  extension  of 
west  Ninth  street.  The  memorialist  admits  that  some  work  remains 
yet  to  be  done  for  the  conclusion  of  the  third  section,  which  he  appre- 
ciates, in  conformity  with  the  opinion  of  two  contractors  of  public 
work,  named  Jose  Rodriguez  and  Daniel  Martinez  Poleo,  could  l)e 
done  for  the  sum  of  4,000  bolivars. 

This  Commission,  desiring  to  obtain  all  the  necessary  information 
about  the  value  of  the  work  that  remained  to  be  done  for  the  comple- 
tion of  the  third  section,  asked  and  obtained  the  learned  opinion  of 
Dr.  Carlos  Monagas,  a  Venezuelan  engineer.  After  having  taken  in 
consideration  that  opinion  and  the  careful  examination  of  all  the  evi- 
dence presented  b}"  both  parties,  the  Commission  arrives  at  the  con- 
clusion that  the  sum  of  30,000  bolivars  must  be  deducted  from  the 
amount  of  203,358.51  bolivars  to  be  paid  for  said  third  section,  as  per 
article  3  of  the  contract. 

The  damages  claimed  for  the  stoppages  of  the  work,  amounting  to 
the  sum  of  262,250  bolivars,  and  the  interest  at  6  per  cent  per  annum 
on  the  balance  due  for  the  price  of  the  first  and  second  sections,  which 
the  claimant  puts  forth  for  43,019  bolivars,  must  ])e  disallowed,  because 
the  stoppage  of  the  work  has  not  been  caused  by  arbitrary  action  of 
the  Government  of  Venezuela,  but  by  the  natural  consequences  of  the 
civil  war,  which  were  admitted  b3'  the  same  contractor  as  justified,  as 
it  appears  from  his  correspondence  with  the  department  of  public 
works. 

The  damages  for  indignities  sufi'ered  and  for  loss  of  mules,  etc.,  on 
March  2, 1903,  amounting  to  25,000  bolivars,  can  not  be  taken  into  con- 
sideration, as  the  fact  on  which  this  part  of  the  claim  is  founded  appears 
to  consist  in  an  act  of  highway  robbery  that  can  not  effect  the  responsi- 
bility of  the  Government  of  Venezuela. 

For  the  aforesaid  reasons  an  award  is  made  in  favor  of  Mr.  Virgilio 
del  Genovese  for  the  sum  of  $70,083,28  United  States  gold,  without 
interest. 


REPORT  OF  ROBERT  C,  MORRIS,  401 

The   United  States  and   Venezuelan    Claims    Commission    sitting   at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Virgilio 
del  Genovese,  claimant,  against  the  Republic  of  Venezuela,  No.  38, 
the  sum  of  sevent\^  thousand  eighty-three  and  28  100  dollars 
(170,083.28)  in  United  States  gold  is  herel\y  awarded  in  favor  of  said 
claimant,  which  sum  shall  be  paid  by  the  Government  of  Venezuela 
to  the  Government  of  the  United  States  of  America  in  accordance 
with  the  provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Baixbkidge, 
CoiinnissifmcT  of  the  part  of  tJie  United  States  of  America. 

J.  DE  J.  Paul, 
Corainissioner  on  the  part  of  Yeneeuela. 
Attest  to  award: 

Hakry  Barge,  Pre^'iident. 
Attest: 

Rudolf  Dolge, 

Secretary  on  the  jMrt  of  the  United  States  of  America. 
J.  Padron  Uztariz, 

Secretary  on  the  part  of  Veneztiela. 
Delivered  October  2,  1903. 


Before  the  Mixed  Commission,  organized  under  the  protocol  of  Feb- 

ruar}'  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  The  La  Guayra  Electric  Light  and  Power 
Company,  claimant,  ',-  No.  39. 

The  Republic  of  Venezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  l)y  the  agent 
of  the  United  States  in  an  oral  argument.  A  l)rief  was  tiled  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of  the 
United  States  in  replication. 

S.  Doc.  317,  58-2 2G 


402  REPORT   OF   ROl^ERT    C.   MORRIS. 


No.  89. 


['rnuislatioii.] 

The  La  Guayra  Electric  Light  and  I'owkk 
Com  pan  3' 

V. 

Venezuela. 

ANSWER. 

HonoraUe  Memlers  of  the  Mixed  Venezuelan- American  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  ehiim  presented  by  the  La  Guayra  Electric  Light  and  Power  Com- 
pany, and  respectfully  informs  this  trilnmal: 

The  present  claim  is  from  every  standpoint  unjustiiiable.  In  none 
of  the  facts  upon  which  the  claim  is  alleged  to  be  based,  has  there 
been  produced  a  serious  or  convincing  proof,  since  the  affirmation  of 
the  interested  parties  themselves  can  not  be  considered  as  such,  t  rom 
the  name  itself  of  the  company  claimant  it  appears  that  it  is  a  corpo- 
ration; consequently,  the  first  proof  that  ought  to  have  been  produced 
is  that  all  of  its  directors  are  American  citizens;  otherwise  citizens  of 
other  countries  could  present  themselves  before  this  Commission  which 
would  be  contrary  to  the  convention  which  created  it.  Now,  then, 
amongst  sucli  directors  there  figures  one  by  the  name  of  Juan  B. 
Garcia,  who,  born  in  Venezuelan  territory,  naturalized  in  the  United 
States,  as  is  evidenced  by  the  documents,  has  returned  to  his  native 
country.  The  doctrine  sustained  hy  the  United  States  in  cases  like 
the  present  is  well  known,  when  naturalized  citizens  claim  its  inter- 
vention against  the  country  of  their  origin;  the  American  Government 
has  always  refused  such  intervention.  (See  Fiore,  Int.  Nat.  Law,  vol. 
1,  paragraph  6.55,  p.  567.  See  also  the  case  of  Myer,  Congressional 
Documents,  1852,  No.  38.) 

The  actual  practice  about  naturalization  may  be  condensed  thus:  So  long  as  the 
naturalized  person  resides  within  the  jurisdictional  limits  of  his  adopted  country,  or 
in  any  other  country,  he  enjoys  entirely  the  benefits  which  the  nationality  that  has 
been  conferred  upon  him  concedes;  upon  returning  to  his  native  country  he  comes 
under  the  territorial  jurisdiction  which  may  demand  the  performance  of  obligations 
l)y  him  from  which  he  escaped  by  emigration.  (See  Calvo,  Int.  Law,  Vol.  II, 
Book  10.) 

The  second  proof  that  ought  to  have  been  produced  is  that  all  the 
stockholders  are  also  American  citizens.     This  proof  also  is  lacking. 

It  is  worthy  of  note,  to  say  the  least,  that  the  claimants  have  not 
))een  able  to  establish  the  proof  of  one  of  the  many  facts  upon  which 
the  claim  is  founded. 

On  the  other  hand,  the  company  has  taken  good  care  to  keep  silence 
concerning  the  amount  of  its  invested  capital,  because  this  would  be  a 
mode  of  determining  the  proportion  between  the  enormous  amount  of 
damages  claimed  and  the  interests  which  are  r.lleged  to  have  been 
injured. 

With  respect  to  the  sums  of  money  which  the  claimant  says  are 
owed  by  the  municipality  of  La  Guayra,  this  is  a  matter  which  ought 
to  be  settled  with  it.  Municipalities  are  juridic  autonomous  persons, 
capable  of  contracting  rights  and  obligations.  The  State  can  not  be 
responsible  for  them. 

The  claim  ought  to  be  disallowed  because  it  is  manifestly  unfounded 
and  venturesome. 

Caracas,  July  26,  1903. 

F.  Arroyo  Parejo. 


REPORT  OF  ROBERT  C.  MORRIS.  4()o 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf] 
of  the  La  Guayra  Electric  Light  and  Power 
Compan\^,  claimant,  J- No.  39. 

V.  I 

The  Republic  of  Venezuela  I 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  this  case  the  United  States  has  presented  a  claim  on  behalf  of  the 
La  Guayra  Electric  Light  and  Power  Company,  a  corporation  created 
and  existing  under  and  b}^  virtue  of  the  laws  of  the  State  of  West 
Virginia,  United  States  of  America,  for  damages  to  its  concessionary 
rights  and  to  its  plant,  due  to  acts  of  the  Venezuelan  authorities  and 
for  amounts  due  under  contracts  with  the  National  Government  of 
Venezuela,  the  Federal  district,  and  the  municipalities  of  La  Guayra 
and  Maiquitia. 

On  the  19th  of  October,  1893,  the  municipal  council  of  the  district 
of  Vargas  granted  a  concession  to  Luis  J.  Garcia  Monjui,  a  resident  of 
the  city  of  La  Guaj'ra,  for  the  erection  of  an  electric  light  and  power 
plant  to  supplv  the  city  of  La  Guayra  and  other  places  designated,  by 
which  the  municipality  agreed  to  pay  a  certain  sum  daily  for  the  serv- 
ice of  light.  The  concessionary  then  transferred  his  contract  to  Juan 
B.  Monjui  and  Arturo  G.  Monjui,  who  agreed  to  organize  a  company 
with  a  capital  of  $250,000  and  pav  him  45  per  cent  of  its  capital  stock, 
which  would  amount  to  $112,500  par  value.  This  company  was  organ- 
ized, as  agreed,  on  the  17th  of  October,  1895,  under  the  laws  of  West 
Virginia,  having  its  principal  place  of  business  in  the  city  of  New 
York.  The  Government  of  Venezuela  was  duly  notified  of  tlie  forma- 
tion of  the  company  and  a  copy  of  its  charter  was  filed  in  Caracas. 
The  company  then  proceeded  to  erect  and  operate  its  plant  in  accord- 
ance with  the  terms  of  the  concession.  For  a  period  of  eighteen  months 
the  company  rendered  the  required  service  and  received  payment  from 
the  municipality  for  about  twelve  months.  The  numicipality  then 
defaulted  in  its  payment,  and  by  action  of  the  municipal  council  pro- 
ceeded to  annul  the  concession.  On  the  same  day  that  the  concession 
was  annulled  a  similar  concession  was  granted  to  F.  Martinez  Espino 
&  Co.  A  protest  was  thereupon  filed  by  the  company  with  the  United 
States  legation  at  Caracas  against  the  action  of  the  municipal  council. 

In  January,  1900,  at  a  session  of  the  court  of  Hrst  instance,  civil  and 
mercantile,  of  Caracas,  an  agreement  of  settlement  between  the  coni- 
panv  and  F.  Martinez  Esjpino  &  Co.  was  reached,  by  which  the  latter 
transferred  all  the  rights  they  claimed  to  the  company  in  consideration  of 
5  per  cent  of  its  preferred  stock  to  l)e  issued.  The  original  concession 
was  also,  by  order  of  the  court,  reestablished  and  extended.  The 
company  then  reconunenced  operations  and  began  to  build  a  jilant  of 
increased  capacit3%  expending  upward  of  lt>50,00()  in  the  work.  The 
municipal  authorities  of  La  Guayia  then  undertook  to  ruin  the  l)usi- 
ness  of  the  company  by  having  the  wires  and  poles  cut,  by  dcslrnying 
the  lamps,  and  disabling  the  maciiincry .  These  deprcdal  ions  continued 
for  a  perljd  of  four  or  five  months,  as  appears  by  the  affidavit  of  Mi-. 


404  REPORT  OK  KOHKKT  O.  MORRLS, 

.liiiui  1>.  (Tiircia,  who  was  the  o(Mioriil  maiKio'cr  of  tlio  company.  Not 
c'ontotit  witli  those  malicious  and  wionj^t'ul  acts,  tlic  nnmicipjil  council 
arbitrarily  ])lacod  under  arrest  the  employees  of  the  company  without 
any  accusation  ayainst  them. 

In  U)(»l  the  numicipal  council  again  amudled  the  concession  of  the 
company,  on  the  grounds  that  the  company  had  not  completed  the 
work  required  within  the  time  specified  under  article  5  of  the  contract 
and  proceeded  to  grant  a  new  concession  to  Messrs,  Perez  and  Morales. 
The  compan}^  ])rotestcd  against  this  action  of  the  municipal  council 
and  showed  by  testimony  taken  ))efore  the  circuit  court  in  Caracas 
that  the  delay  of  the  company  in  the  completion  of  its  work  was  due 
to  civil  war  and  the  result  of  a  severe  earthquake.  Under  article  5  of 
the  contract  provision  was  made  to  cover  all  delays  caused  by  superior 
force,  and  it  was  evident  that  the  company  was  carrying  on  the  work 
strictly  in  accordance  with  its  agreement.  The  matter  was  then 
brought  to  the  attention  of  the  United  States  legation  at  Caracas,  as 
appears  by  the  letter  of  the  United  States  minister  to  the  President  of 
the  llepublic  of  Venezuela,  dated  January  30,  1901. 

An  alternative  proposition  is  advanced  in  the  memorial  of  the  claim- 
ant by  which  it  is  indicated  that  the  reinstatement  of  the  concession 
will  be  accepted  b}^  the  company  for  a  part  of  the  claim.  But  such 
adjustment  can  not  be  arranged  by  this  honorable  tribunal,  as  it  does 
not  come  within  its  jurisdiction  and  should  ))e  the  subject  of  negotia- 
tions between  the  company  and  the  Grovernment  of  Venezuela. 

II. 

In  the  answer  of  Venezuela,  it  is  asserted  that  the  claim  is  from 
every  standpoint  unjustifiable  as  the  proof  is  insufficient  upon  the 
question  of  the  citizenship  of  the  individuals  interested  in  tne  com- 
pany and  also  upon  the  amount  of  money  which  was  actually  invested. 

While  it  is  true  that  a  minor  portion  of  the  company's  stock  was 
the  property  of  a  citizen  of  Venezuela  issued  to  him  as  a  consideration 
for  the  original  concession  of  1893,  yet  it  is  undeniable  that  the  greater 
portion  of  the  stock  is  the  property  of  citizens  of  the  United  States 
and  that  their  money  formed  the  working  capital  for  the  enterprise. 

In  addition  to  the  evidence  heretofore  submitted  to  this  honorable 
Commission  there  is  now  presented  copies  of  the  following  documents: 

A  certificate  of  incorporation  of  the  company,  together  with  the 
certificate  of  increase  of  capital;  three  concessions  for  La  Guayra, 
Macuto,  and  Maiquitia,  respectiv^ely;  a  contract  for  lighting  Govern- 
ment buildings;  the  transfer  of  these  concessions  and  contract  from 
Luis  J.  Garcia  Monjui  to  Juan  B.  and  Arturo  Garcia  Monjui;  three 
extensions  of  concessions  and  contracts  to  the  company;  the  proceed- 
ings annulling  the  concession  and  the  new  concession  to  F.  Martinez 
Espino  &  Co.;  the  protest  of  the  company  against  this  concession, 
certified  to  by  the  secretary  of  the  United  States  legation  at  Caracas; 
the  settlement  in  court;  the  refusal  of  the  municipal  council  to  extend 
the  time  of  the  company  because  of  the  civil  war  and  the  earthquake; 
the  new  concession  granted  to  Perez  and  Morales;  the  affidavit  of 
witnesses  setting  forth  reasons  why  the  extension  of  time  should  have 
been  granted  to  the  company;  the  protest  of  the  company  against  the 
Perez  and  Morales  contract;  the  letter  addressed  to  the  President  of 
the  Republic  by  the  minister  of  the  United  States  at  Caracas,  and  the 


REPORT  OF  ROBERT  C.  MORRIS.  405 

statement  of  amounts  expended  in  construction  and  operation  of  tlie 
company's  plant  and  of  the  amounts  due  for  electric  light  supplied. 

III. 

In  the  answer  of  Venezuela  all  Federal  responsibilit}'  is  disclaimed 
for  the  acts  of  the  municipality  of  La  Gua^-ra  on  the  ground  that 
"  Municipalities  are  juridic  autonomous  persons  capable  of  contracting 
rights  and  obligations." 

In  reply  to  this  we  submit  that  in  the  present  case  this  position  is 
untenable  from  two  points  of  view: 

(1)  This  claim  is  made  by  a  corporation,  a  citizen  of  the  United 
States,  and  under  the  terms  of  the  protocol  entered  into  last  Februarj'^ 
between  the  United  States  of  America  and  the  Republic  of  Venezuela, 
it  was  provided  that  all  claims  owned  by  citizens  of  the  United  States 
which  had  not  been  settled  by  diplomatic  agreement  or  by  arbitration 
should  be  presented  to  this  Commission  to  be  examined  and  decided 
without  regard  to  objections  of  a  technical  nature  or  of  provisions  of 
local  legislation.  By  this  agreement  it  is  evident  that  all  citizens  of 
the  United  States  who  possessed  claims  were  given  the  right  of  recourse 
against  the  entity  which  entered  into  this  international  engagement. 
Under  this  agreement  the  various  political  subdivisions  of  the  Govern- 
ment of  Venezuela  were  included.  The  Government  of  Venezuela 
alone  represented  them;  and  although  it  may  appear  unfair  that  the 
Federal  Government  should  bear  the  responsibilit}^  of  the  acts  of 
municipalities,  nevertheless  the  agreement  has  l)cen  made,  and  the 
provisions  of  the  federal  constitution  making  municipalities  auton- 
omous and  responsible  for  their  own  acts  only  can  not  be  invoked,  for 
in  this  case  the  treaty  agreement  stands  superior  to  the  constitution, 
and  the  latter  must  give  way.  There  is  in  this  case  no  remedy  but 
against  the  Federal  Government,  which,  by  signing  the  protocol,  has 
obligated  itself  to  redress  the  wrongful  acts  of  municipalities  as  well 
as  other  constituent  parts  of  its  power,  and  it  in  turn  must  look  for 
satisfaction  from  the  aggressor.  In  signing  the  protocol  Venezuela 
had  full  knowledge  and  understanding  of  the  conse(iuences  entailed, 
and  it  took  into  consideration  the  advantages  to  ])e  gained,  as  well  as 
the  responsibilities  to  be  assumed,  and  it  can  not  object  to  the  latter. 

(2)  The  Federal  Government  of  Venezuela  had  full  knowledge  of  the 
wrongful  acts  committed  against  this  company  by  the  protests  which 
were  filed,  and  it  should  have  done  all  in  its  power  to  prevent  or  redress 
the  wrong.  Having  knowledge  of  the  facts  and  failing  to  take  any 
steps,  it  tacitly  concurred  in  the  wrongs  and  has  therefore  made  itself 
liable. 

IV. 

We  submit  that  tne  claimant  is  entitled  to  an  award  for  damages  to 
its  concessionary  rights,  to  the  injuries  to  its  property,  and  for  the 
breaches  of  its  contract. 

Respectful  Iv  submitted. 

RoiiEUT  C.  MOUKIS, 

Agent  of  the  United  IStaten. 


40(i  REPORT    OF    KOllKRT    C.    MORRIS. 

The    United    States   and    Vene/uelaii   Claiins   ('onnnission,  sitting  at 

Caracas,  VcMieziiela. 

The  United  States  of  Ameiiica  on  behalf 
of  the  La  Guayra  P^lectric  Light  and  Power 
Company,  claimant,  -No.  39. 

r. 
The  Republics  of  Venezuela. 

DECISION  AND  AWARD. 

Opinion  by  Bainbridge,  Commissioner. 

The  Commission  awards  to  the  claimant  the  smii  of  $2,659.61,  United 
States  gold;  and  dismisses  the  remaining  items  of  the  claim  without 
prejudice,  for  want  of  jurisdiction. 

October  2,  1903. 

The   United   States   and   Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States   of  America  on   behalf^ 
of  the  La  Guayra  Electric  Light  and  Power 
Company,  claimant,  1-No.  39. 

V. 

The  Republic  of  Venezuela. 

Bainbridge,  Commissione?' : 

It  appears  from  the  evidence  that  on  October  19, 1893,  the  municipal 
council  of  La  Guayra  in  ordinary  session  approved  a  contract  granting 
to  one  Luis  J.  Garcia  the  privilege  of  establishing  an  electrict-light 
plant  in  that  city.  The  contract  was  executed  on  behalf  of  the  city  by 
'"' Rafael  Ravard,  chairman  of  the  municipal  council  of  the  District  of 
Vargas,  sufficiently  empowered  by  this  corporation  "  and  by  Luis  J. 
Garcia,  "a  resident  of  this  city,"  on  the  other  part. 

On  October  11,  1895,  Luis  J.  Garcia  transferred  to  his  brothers, 
Juan  B.  and  Aturo  Garcia,  all  the  rights  and  privileges  possessed  by 
the  former  under  the  contract.  Juan  B.  Garcia  and  others  incorpo- 
rated the  claimant  company  under  the  laws  of  the  State  of  West  Vir- 
ginia on  October  IT,  1895. 

B}^  the  fourth  article  of  the  contract  of  1893  it  was  provided  that  the 
work  to  establish  the  plant  was  to  begin  within  six  months  and  to  be 
finished  within  ten  months.  The  twelfth  article  provided  that  the 
contract  was  to  run  twenty-five  years  and  the  municipality  bound 
itself  not  to  grant  to  anyone  for  the  District  of  Vargas  equal  or  better 
rights  for  the  public;  lighting  or  to  make  any  contract  relating  to  any 
illumination. 

In  April,  1894,  Luis  J.  Garcia  was  granted  an  extension  of  six 
months  to  begin  the  work  of  installing  the  plant;  again  in  March, 
1895,  another  extension  of  four  months  was  granted  him  by  the  munic- 
ipal council,  and  still  another  extension  of  six  months  on  June  8, 1895. 

The  minutes  of  the  municipal  council  of  La  Guayra,  under  date  of 
December  27,  1897,  show  an  entry  to  the  effect  that  all  efforts  of  that 
body  and  of  the  mayor  have  been  useless  to  obtain  the  fulfillment  of 
the  contract  made  with  Luis  J.  Garcia.     On  December  31,  1897,  the 


REPORT  OF  ROBERT  C.    MORRIS.  407 

municipal  council  approved   a  contract  with  F.  Martinez  Espino  & 
Co.,  of  Caracas,  for  the  establishment  of  electric  lighting. 

On  Januar}^  23,  1900,  in  the  court  of  tirst  instance  at  Petare,  in  a 
certain  action  entered  by  the  La  Cxuayra  Electric  Light  and  Power  Corn- 
pan}^  against  the  municipal  council  of  the  Vargas  district,  a  settle- 
ment of  said  litigation  was  eflected  and  made  of  record,  wherebj'^  F, 
Martinez  Espino  &  Co.  transferred  to  the  La  Guajn-a  Electric 
Light  and  Power  Company  all  the  rights  and  privileges  of  the  contract 
executed  December  81,  1897,.  with  the  council  of  the  Vargas  district, 
and  as  a  compensation  for  this  transfer  the  La  Guayra  Electhic  Light 
and  Power  Company  recognized  the  right  of  Espino  &  Co.  to 
receive  5  per  cent  of  the  shares  issued  by  the  cessionary  company; 
and  l)y  the  fourth  article  of  the  settlement  the  municipal  council  of 
the  Vargas  district  and  J.  B.  Garcia  as  attorney  for  the  La  Guayra  Elec- 
tric Light  and  Power  Company  "'agreed,  to  rescind  the  contract  which 
with  the  same  purpose  was  executed  under  date  of  October  19, 1893, 
between  the  said  municipal  council  and  Luis  J.  Garcia,  remaining  only 
in  force  the  caused  by  this  cession."  In  November,  1897,  the  munici- 
pality had  brought  suit  in  the  court  at  Petare  for  the  cancellation  of 
the  contract  of  October  19,  1893.  And  as  indicating  the  scope  of  the 
settlement  effected  on  January  23,  1900,  the  following  is  quoted  from 
the  judicial  record: 

This  tribunal  gives  its  approval  to  this  transaction  (i.  e.,  the  settlement),  interpos- 
ing for  its  greatest  force  its  authority  and  judidal  decree;  and  resolves,  according  to 
the  request,  to  make  appear  in  the  file  of  the  action  entered  by  the  municipal  council 
of  the  Vargas  district  against  the  La  Guayra  Electric  Light  and  Power  Company  for 
tlie  abrogation  of  a  contract  about  electric  light,  that  this  settlement  has  been  entered 
into. 

The  fifth  article  of  the  contract  with  Espino  &  Co.,  referred  to  in 
the  settlement  as  being  the  only  one  thereafter  remaining  in  force, 
reads  as  follows: 

The  work  for  installation  of  the  company  must  be  started  six  months  from  date 
of  tliis  contract  (i.  e.,  December  31,  1897),  and  ended  six  months  after  started.  This 
time  could  be  extended  for  cause  of  superior  forces.  The  failure  to  comply  witiiin 
the  time  stipulated  will  make  this  contract  abrogated. 

However,  it  was  agreed  in  the  settlement  effected  in  court  on  Jan- 
uary 23,  1900,  that  ''as  a  natural  result  of  this  transaction  the  i)arties 
hereto  have  agreed  that  the  time  stipulated  in  the  contract  transferred 
will  begin  to  count  from  this  date.'" 

At  an  extra  session  of  the  numicipal  council  of  the  Department  of 
Vargas  held  on  January  2-1,  1901,  a  resolution  was  passed  that  the  con- 
tract with  the  La  Guayra  Electric  Light  and  Power  Company  had 
ceased  de  facto  according  to  the  fifth  article  thereof. 

On  February  25,  190l,  the  numicipal  council  of  La  (ruayi-a  ratilied 
a  contract  for 'electric  lighting,  executed  on  December  12,  1899,  with 
Messrs.  Perez  and  Morales. 

On  March  6,  1901,  J.  B.  Garcia,  as  attorney  for  the  La  (iuayra 
Electric  Light  and  Power  Company  protested  against  the  action  of  the 
municipal  council  in  canceling  the  contract  of  which  said  compativ 
was  cessionary  as  per  the  judicial  settlement  of  .laiuiary  23,  li»(»o,  and 
against  the  refusal  of  the  council  to  grant  the  extensions  reciuested  for 
beginning  the  work,  and  claiming  that  the  state  of  civil  war  and  lat- 
terly the  earthfjuake  of  Octol)er  29,  1900,  had  prevented  compliance 
with  the  contract  and  rendered  necessary  the  extensions  of  tune  asked. 


408  KEroKT  OK  KOKKKT  (\  MORRIS. 

He  insisted  in  tlie  ))r()test  tlial  supposino-  the  company  were  in  fault, 
the  council  **  could  only  have  an  action  to  ask  for  the  ahrog-ation  of 
the  contract  ])cl'ore  the  courts  of  justice,  as  the  contract  is  nuituah'"' 

Substantially  upon  the  fore*>-oin<>'  facts  a  claim  is  presented  here  on 
behalf  of  the  La  Guayra  Electric  Li«^ht  and  Power  Company  aj^ainst 
the  Hepul)lic  of  Venezuela  for  the  sum  of  $1,500,000.  But  the  memo- 
rialist states: 

The  company  is  -willing,  however,  on  condition  that  the  Republic  of  Venezuela 
and  the  municipalities  concerned  act  in  a  friendly  spirit,  payino;  damages  sustained 
tliroui,di  actual  destrui'tion  of  property  and  rcjiranting  its  charter  so  that  its  rights 
may  be  extended  for  a  period  to  com])ensate  f(ir  the  interrui>tion  and  destruction  of 
its  l)usiness,  that  then  the  loss  of  profits  specified  shall  be  waived  and  the  sum  of 
$150,000  for  actual  loss  of  property  in  that  event  received. 

The  memoi'ial  is  couched  in  somewhat  vague  and  indetinite  terms. 
Various  interruptions  of  the  company's  service  are  alleged  and  certain 
unpaid  indebtedness  from  the  municipality  to  the  company  is  set  forth. 
An  alleged  arrest  of  all  the  employees  of  the  company  on  one  occasion 
and  their  detention  "in  the  calaboose"  overnight  is  charged,  and  it 
appears  that  J.  B.  Garcia  was  arrested  on  April  4,  1898,  and  confined 
for  a  period  of  twenty-four  days,  the  only  excuse  for  his  confinement 
being  that  he  w^as  a  political  suspect.  Since  February  23,  1899,  said 
Garcia  has  been  a  citizen  of  the  United  States.  As  nearly  as  can  be 
ascertained  from  all  the  evidence  presented,  the  injuries  to  property 
complained  of  occurred  during  the  years  1897, 1898,  and  1899,  prior,  it 
is  to  be  observed,  to  the  settlement  of  ditferences  between  the  company 
and  the  municipality  effected  and  made  of  record  in  the  court  of  first 
instance  at  Petare  on  the  23d  of  Janitary,  1900. 

The  contract  of  the  claimant  company  then  in  force  was  declared 
null  and  void  "de  facto  according  to  the  fifth  article  thereof"  by  the 
municipal  council  on  January  24,  1901. 

The  protest  of  the  company  made  on  March  6,  1901,  was  against  the 
refusal  of  the  council  to  grant  extensions  requested  for  beginning  and 
executing  the  work  as  provided  by  that  article.  It  is  not  claimed  that 
the  contract  had  been  complied  with,  but  that  the  state  of  civil  war  and 
the  earthquake  of  October  29, 1900,  had  prevented  compliance  and  ren- 
dered necessary  the  extensions  asked.  The  protest  seeks  to  "reserve 
all  the  rights  of  the  company  about  the  matter  to  make  them  valuable 
before  the  tribunals  of  the  Republic  against  the  said  municipal 
council." 

Except  as  hereinafter  stated,  the  Government  of  Venezuela  does  not 
appear  in  any  contract  or  proceeding  relating  to  this  company.  The 
parties  to  the  various  contracts  and  judicial  proceedings  were  the 
municipal  council  of  the  district  of  Vargas  and  the  claimant;  but  it  is 
sought  here  to  hold  the  National  Government  liable  for  the  acts  of  the 
municipality  as  one  of  the  political  subdivisions  of  the  State.  No  evi- 
dence is  introduced  to  fix  such  lialnlity  by  reason  of  special  legislative 
or  administrative  control  exercised  by  the  National  Government  over 
the  municipality.  The  learned  council  for  the  United  States  argues 
that  by  the  protocol  constituting  this  Commission  all  citizens  of  the 
United  States  who  possessed  claims  were  given  the  right  of  recourse 
against  the  entity  which  entered  into  this  international  agreement,  and 
that  under  this  agreement  the  various  political  subdivisions  of  the 
Government  of  Venezuela  were  included;  and  further,  that  there  is  in 
this  case  no  remedy  but  against  the  Federal  Government  which  by  sign- 


REPORT  OF  ROBERT  C.  MORRIS.  409 

ing-  the  protocol  has  olilig'atcd  itself  to  redress  the  wrongful  acts  of 
municipalities  as  well  as  other  constituted  parts  of  its  power. 

The  argument,  however,  overlooks  the  dual  character  of  municipal 
corporations;  the  one,  governmental,  legislative,  or  public;  the  other, 
proprietary  or  private. 

In  their  public  capacity  a  responsibility  exists  in  the  performance  of  acts  for  the 
public  benefit,  and  in  this  respect  they  are  merely  a  part  of  the  machinery  of  govern- 
ment of  the  sovereignty  creating  theni,  and  the  authority  of  the  State  is  supreme. 

But  in  their  proprietary  character  their  powers  are  supposed  to  be  conferred  not 
from  considerations  of  State,  but  fdr  the  private  advantage  of  the  particular  corpora- 
tion as  a  distinct  legal  personality.     (Bouvier's  Law  Diet.,  Eawle's  ed.,  453.) 

Those  matters  which  are  of  concern  to  the  State  at  large,  although  exercised  within 
defined  limits,  such  as  the  administration  of  justice,  the  preservation  of  the  public 
peace,  and  the  like,  are  held  to  be  under  legislative  control,  while  the  enforcement 
of  municipal  bv-laws  proper,  the  establishment  of  gas  works,  waterworks,  construc- 
tion of  sewers  "and  the  like,  are  matters  which  pertain  to  the  nmnicipality  as  distin- 
guished from  the  State  at  large.     (Ibid.) 

The  contract  between  the  municipal  council  and  the  claimant  company 
for  the  establishment  of  the  electric-light  plant  was  entered  into  by 
the  former  solely  in  the  exercise  of  its  proprietary  functions  as  a  dis- 
tinct legal  personality.  Its  act  was  in  nowise  connected  with  its  gov- 
ernmental or  public'functions  as  a  political  subdivision  of  the  State. 
So  far  as  the  contract  is  concerned,  the  uuuiicipality  is  to  be  regarded 
as  neither  more  nor  less  than  a  private  corporation,  and  as  such  could 
sue  or  be  sued  in  respect  thereof.     (Dillon,  Mun.  Corp.,  sec.  66.) 

It  is  fundamental  that  citizens  or  subjects  of  one  country  who  go  to 
a  foreign  country  and  enter  into  contracts  with  its  citizens  are  pre- 
sumed to  make  their  engagements  in  accordance  with,  and  subject  to, 
the  laws  of  the  countrv  where  the  obligations  imposed  by  the  contract, 
are  to  be  fulfilled,  and'^are  ordinarily  remitted  to  the  remedies  attordecl 
by  those  laws  for  the  redress  of  grievances  resulting  from  breaches  or 
nonfulfillment  of  such  contracts. 

It  is  only  when  those  laws  are  not  fairly  administered,  or  when  they  provide  no 
remedy  for  wrongs,  or  when  they  are  such  as  might  haj^pen  in  very  exceptional 
cases,  as  to  constitute  grievous  oppression  in  themselves,  that  tlie  State  to  which  the 
individual  l^elongs  has  the  right  to  interfere  in  his  behalf.     (Hall,  Int.  Law,  sec.  87. ) 

In  order  to  bring  this  claim  within  the  jurisdiction  of  the  Commis- 
sion, it  was,  in  our  judgment,  incumbent  upon  the  claimant  to  show  a 
sufficient  excuse  for  not  having  made  an  appeal  to  the  courts  of  V(mic- 
zuela  open  to  it,  or  a  discrimination  or  detiial  of  justice  after  .such  appeal 
had  been  made.  As  the  claim  stands,  it  is  merely  a  dispute  between 
a  citizen  of  the  United  States  and  a  citizen  of  Venezuela  m  regard 
to  their  respective  rights  under  the  terms  of  a  certain  contract.  It 
has  not  the  necessarv  basis  for  an  international  reclamation.  The  ca.se 
is  verv  difierent  from  one  in  which  the  Government  itself  has  violated 
a  contract  to  which  it  is  a  partv.  In  such  a  case  the  juri.sdiction  of 
the  Commission  under  the  terms  of  the  protocol  is  beyond  (luestion. 
All  that  is  decided  here  is  that  the  Conunission  has  no  junsdu-tion  of 
the  claim  of  the  La  (iuavra  Electric  Light  and  Power  Company  in  its 
present  status  and  the  .said  claim,  except  as  hereinafter  stated,  is  hereby 
dismissed  on  that  ground  without  prejudice  to  the  rights  of  either  tli<« 
claimant  company  or  the  municipality  concerniHl. 

But  it  appears  in  evidence  that  on  July  7,  l.S!»4,  the  Nationa  (.ov- 
ernment  made  a  contract  with  Luis  J.  Garcia  "  for  him.selt  and  loi-  tlie 
company  which  he  may  organize"  by  which  the  said  Garcia  or  Ins 


410  REPORT  (W    ROBERT  0.  MORRIS. 

company  agreed  to  provide  t'leetrie  lioht  for  the  eustoni-hoiisc  and 
otli(>r  ])iil)lie  Imildinos  at  La  (iiiaira,  the  (xovernnieMt  ayreeinj^-  to  pay 
to  (Jarcia  or  to  the  eonipany  for  sueh  .s(>rvicc  the  sum  of  2,000  bolivars 
monthly.  The  ehiimant  herein  aUeues  that  there  is  due  from  the 
National  (lovermnent,  aecordino-  to  this  contraet  for  services  rendered 
from  ,luly  I  to  December  1,  1S}>7,  the  sum  of  $2,807. Oy.  This  indebt- 
edness is  not  denied  by  the  Government  of  Venezuela,  and  an  award 
is  therefore  made  for  said  sum  with  interest  thereon  at  3  per  cent  pei" 
annum  from  December  1,  181)7,  to  December  81,  1903,  the  anticipated 
date  of  the  linal  award  by  this  Commission. 

The   United  States  and  Venezuelan    Claims    Commission,   sitting   at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  La 
Gua3'ra  Electric  Light  and  Power  Compan}^,  against  the  Republic  of 
Venezuela,  No.  89,  the  .sum  of  two  thousand  six  hundred  tifty-nineand 
()l/lOO  dollars  ($2, 659. 01)  United  States  gold  is  hereby  awarded  in 
favor  of  said  claimant,  which  sum  shall  be  paid  by  the  Government  of 
Venezuela  to  the  Government  of  the  United  States  of  America  in 
accordance  with  the  provisions  of  the  convention  under  which  this 
award  is  made. 

The  remaining  items  of  the  claim  are  hereby  dismissed  without  preju- 
dice for  want  of  jurisdiction. 

William  E.  Bainbridge, 
Commissio7ier  on  the  pai't  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  07i  the 2)art  of  Venezuela. 

Attest  to  award: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  'part  of  Venezuela. 
Rudolf  Dolge, 

Seci'etary  on  the  part  of  the  United  States  of  America. 
Delivered  October  2,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  J 

of  Henry  T.  Duke,  claimant,  |  i^      ,r. 

V.  '' 

The  Republic  of  Venezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  tiled  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of  the 
United  States  in  replication. 


Henry  T.  Duke 

'V. 

/enezuela. 


REPORT  OF  ROBERT  O.  MORRIS.  411 

[Translation.] 

>•  Claim  No.  -10. 

ANSWER. 


Honmxihle  Memhers  oftlie  Venezuelan  Amei'ican  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  in  the  name  of  Henry  T.  Duke,  and  respectfully 
shows  to  the  tribunal: 

It  is  to  be  noticed,  with  respect  to  the  present  claim,  that  it  has  not 
been  presented  by  the  interested  part}",  but  by  a  law3"er  who  calls  him- 
self his  attorne}'  in  fact.  In  the  memorial  address  by  the  latter  to  the 
honorable  Commission  an  extension  of  time  is  asked  for  the  piesenta- 
tion  of  proofs  which,  up  to  the  date  of  this  answer,  have  not  been 
furnished. 

As  the  claimants  have  disposed  of  suiBcient  time  to  make  all  the 
necessary  proofs  in  support  of  the  claim,  and  as  in  the  present  case  this 
has  not  been  done,  the  undersigned  finds  himself  under  the  necessitj' 
of  rejecting  this  claim  because  it  lacks  all  the  foundation  required  by 
law  and  equity. 

Besides,  the  power  conferred  upon  the  lawj-er  claimant  b}'  the 
American  citizen  Henry  T.  Duke  can  not  serve  for  the  purpose  of 
personal  representation  before  this  Commission,  which  is  an  interna- 
tional tribunal,  and  to  appear  before  which  a  special  authorization  is 
necessary.  The  power  produced  h\  the  said  lawyer  bears  a  date  long 
before  that  of  the  convention  Avhich  created  this  tribunal,  and  there- 
fore the  principal  could  not  have  had  in  mind  that  his  attorney  should 
represent  him  before  it. 

The  claim  ought,  therefore,  to  be  disallowed  as  not  having  been  pre- 
sented b}^  an  authorized  person. 

Caracas,  July  24,  1903. 

F.  Arroyo  Pare.to. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Henry  T.  Duke,  claimant, 

V. 

The  Republic  of  Venezuela. 


V  No.  40. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

In  the  above-entitled  matter  claim  is  made  l»y  Mr.  Henry  T.  Duke, 
;i  citizen  of  the  United  States  - 

{<()  For  41,200  bolivars  diu;  hnu  under  a  contract  to  build  water- 
works at  Maracav,  a  citv  of  the  former  State  of  Miranda.  That  this 
contract  was  fully  carried  out  is  borne  out  by  the  ct'itilicatc  of  the 
treasurer  of  the  State,  Cenaro  Ramirez,  submitted  in  evidcMicc  with 
the  memorial.  By  this  certificate  there  is  an  admitted  ()l)ligation  on 
the  part  of  the  State  of  Miranda  to  Mr.  Duke  for  the  amount  al)ove 
specified. 


412  REPORT  OF  ROBERT  C.   MORRIS. 

(//)  A  chiiin  is  mIso  iii:i(l(>  for  (lie  sum  of  $;>,()(>0  riiitcd  States  gold 
for  o\|)«Mi.scs  iiuunod  hy  llio  claiiuiuit  while  oiulciivoriiii*'  to  collect 
the  aniount  due  him  on  the  contract  for  the  waterworks  and  for 
expenditures  which  he  was  oblioed  to  make  in  their  preservation. 

{<')  A  further  claim  is  made  for  the  l)alance  under  a  contract  between 
the  claimant  and  the  department  of  public  works  of  Venezuela  for  the 
construction  of  a  coast-guard  building  at  La  Guaira.  The  facts 
regarding  this  contract  are  set  forth  in  the  official  yearbook  of  the 
department  of  public  works  for  the  year  1899,  at  pages  6  and  7  of 
Vohune  1,  except  that  there  appears  to  have  been  an  agreement  sub- 
sequent to  this  contract  for  an  increase  in  price.  The  documents  in 
regard  to  this  increase  can  be  found  in  the  department  of  public 
works  and  it  is  respectfully  requested  that  they  be  called  for  by  the 
Connnission,  inasmuch  as  the  representative  of  the  claimant  has  been 
unable  to  obtain  them. 


As  to  the  first  item  of  the  claim,  there  can  be  no  doubt  regarding 
the  responsibility  of  Venezuela  for  its  payment,  although  the  State  of 
Miranda  and  not  the  Federal  Government  was  the  contracting  party. 
As  to  the  question  of  national  responsibility  for  the  acts  of  a  State, 
we  refer  to  the  case  of  the  Jlrmtijo,  in  the  second  volume  of  Moore's 
International  Arbitrations,  at  page  14:21.  In  this  case  there  was  a  dis- 
agreement between  the  Commissioners  and  the  matter  was  referred  to 
the  umpire — Mr.  Robert  Bunch^ — who  rendered  an  award  in  favor  of 
the  claimants.  On  the  question  of  national  responsibility  for  the  acts 
of  a  State  it  was  contended  by  the  Colombian  arbitrator  that  the  Union 
had  no  connection  with  the  debts  of  a  State,  and  on  this  point  the 
umpire  replied  as  follows: 

To  this  the  undersigned  replies,  first,  that  in  his  opinion  the  Government  of  the 
Union  has  a  very  clear  and  decided  connection  with  the  debts  incurred  by  the  States 
of  the  Union  toward  foreigners  whose  treaty  rights  have  been  invaded  or  attacked; 
and,  secondly,  that  the  debts  so  incurred  by  the  separate  States  are  in  no  way  pri- 
vate, but,  on  the  contrary,  entirely  jjublic  in  their  character. 

As  to  the  first  point  referred  to  by  the  umpire  in  the  above  case,  he 
goes  on  to  say: 

If  this  rule,  which  the  undersigned  believes  to  be  beyond  dispute,  be  correctly  laid 
down,  it  follows  that  in  every  case  of  international  wrong  the  General  Government 
of  this  Republic  has  a  very  close  connection  with  the  proceedings  of  the  separate 
States  of  the  Union.  As  it,  and  it  alone,  is  responsible  to  foreign  nations,  it  is  bound 
to  show  in  every  case  that  it  has  done  its  best  to  obtain  satisfaction  from  the 
aggressor. 

Regarding  the  second  point  to  which  the  umpire  in  the  above  case 
referred,  he  says: 

As  regards  the  second  point  made  by  the  Colombian  arbitrator,  that  the  delfts 
incurred  to  foreigners  by  States  of  the  Union  are  private  in  their  character,  the 
imdersigned  can  only  express  his  dissent  from  the  doctrine.  If  an  engagement, 
pecuniary  or  other,  made  by  the  constitutional  head  of  a  State,  acting,  as  in  the 
present  case,  "in  virtue  of  powers  conferred  by  law,"  is  to  beconsidered  in  the  same 
light  as  an  ordinary  mercantile  debt  and  only  to  be  recoverable  in  the  same  manner, 
the  possil»ility  of  a  State  contracting  with  either  native  or  foreigner  would  soon  be 
reduced  to  very  narrow  limits.  The  chances  of  lepayment  would  depend  on  the 
stability  of  the  contracting  government,  and  this  of  itself  would  introduce  an  element 
of  considerable  uncertainty  into  such  transactions. 


REPORT    OF    KOI5KKT    C.    MORRIS.  413 

For  these  reasons  the  undersigned  holds,  as  a  general  principle,  that  the  Govern- 
ment of  the  Union  is  responsible  in  certain  cases  for  the  wrongs  inflicted  on  foreigners 
by  the  separate  States,  and  that  debts  contracted  by  the  constituted  authorities  of 
those  States  are  not  private  in  their  character.  He  is  compelled,  therefore,  to  dissent 
from  the  sixth  reason  of  the  Colonil)ian  arbitrator. 

We  submit  that  the  responsibility'  of  the  Federal  Government  in 
relation  to  this  contract  is  clearl}'  established  and  that  an  award  should 
be  made  for  the  amount  claimed. 

As  to  the  amount  of  money  which  was  expended  in  an  effort  to  col- 
lect the  sum  due  on  the  contract  and  for  the  maintenance  of  these 
waterworks,  specified  in  the  second  item  of  the  claim,  we  submit  that 
under  the  circumstances  this  item  of  the  claim  is  fair  and  that  an  award 
should  be  made. 

11. 

Regarding  the  third  item  of  the  memorial  we  submit  that  the  report 
of  the  department  of  public  works  above  referred  to  is  conclusive 
evidence  as  to  that  part  of  the  claim  which  is  detiniteh'  stated,  and  that 
when  the  documents  are  received  from  the  department  of  public  works 
regarding  the  increase  in  the  price  agreed  to,  it  will  enable  the  Com- 
mission to  determine  the  additional  amount      e  the  claimant. 

III. 

In  the  answer  of  Venezuela  in  this  claim  it  is  contended  that  the 
])ower  of  attorne}'  conferred  upon  the  representative  of  the  claimant 
"can  not  serve  for  the  purpose  of  personal  representation  before  this 
Commission."  We  su})mit  that  the  claim  is  not  being  made  b}-  the 
attorney  in  fact  personalh^  and  for  his  own  benefit,  but  as  the  rep- 
resentative of  the  claimant,  and  that  therefore  no  objection  can  be 
raised.  Moreover,  this  claim  is  presented  by  the  United  States  of 
America  on  behalf  of  the  claimant,  and  the  question  of  the  technical 
right  of  an  attorne}"  in  fact  to  present  the  claim  is  of  no  importance. 
The  Commission  has  full  jurisdiction  in  this  matter  b}-  virtue  of  the 
first  paragraph  of  article  2  of  the  protocol,  which  reads  as  follows: 

The  Commissioners,  or  umpire,  as  the  case  may  be,  shall  investigate  and  decide 
said  claims  upon  such  evidence  or  information  only  as  shall  be  furnished  by  or  on 
behalf  of  the  respective  (Governments.  They  shall  l)e  bound  to  receive  and  consider 
all  written  documents  or  statements  which  may  be  presented  to  theml)yoron  behalf 
of  the  respective  Governments  in  support  of  or  in  answer  to  any  claim,  and  to  hear 
oral  or  written  arguments  made  by  the  agent  of  each  Government  on  every  claim. 

IV. 

An  award  should  me  made  for  the  full  amount  claimed,  together 
with  interest. 

Respectfully  submitted. 

RoBEUT  C.  Morris, 
Agetit  of  tlio  United  Btatcn. 


414  REPORT  OF  ROBERT  C.  MORRIS. 

The   Tiiitod   States    and   Venozuelan  Claims    ('oiniuissiou,  sittinj^   at 

Caracas,  Venezuela. 


y  No.  40 


The  United  States  of  America  on  behalf 
of  Ilenry  T.  Duke,  claimant. 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  l^y  Doctor  Paiil,  commissioniu-. 
The  Commission  disallows  the  claim. 
October  2,  1903. 

The   United   States   and  Venezuelan  Claims  Commission,   sitting-  at 

Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  Heniy  T.  Duke,  claimant. 

V. 

The  Republic  of  Venezuela. 


No.  40. 


Doctor  Paul,  Commissioner: 

This  claim  has  been  presented  on  behalf  of  Heniy  T.  Duke,  an 
American  citizen,  for  the  payment  of  the  sum  of  41,200  bolivars,  price 
of  the  aqueduct  of  the  town  of  Maraca}^  State  of  Miranda,  and  the  sum 
of  $3,000  expended  by  the  claimant  while  trying  to  obtain  payment 
for  the  value  of  the  work  and  for  its  preservation. 

Another  part  of  the  claim  for  $2,800  is  based  on  the  balance  due  to 
the  claimant  by  the  Government  of  Venezuela,  according  to  a  contract 
with  the  department  of  public  works  for  the  construction  of  a  house 
in  La  Guaira,  for  the  service  of  the  revenue  cutters,  not  completed  on 
account  of  the  revolutionary  troubles  and  consequent  suspension  of 
public  works. 

The  claimant's  attorney  in  this  cit}^,  M.  O.  Romero  Sanchez,  on 
making  the  original  presentation  of  this  claim  to  the  Comniission  made 
a  statement,  which  was  reproduced  by  the  honorable  agent  for  the 
United  States,  saying  that  said  Henry  T.  Duke  had  at  his  residence 
in  Philadelphia  the  documents  proving  his  rights,  which  documents 
have  not  been  presented,  notwithstanding  the  long  time  elapsed  since 
the  formal  presentation  of  the  claim. 

The  certificate  signed  at  Maracay  on  December  15,  1898,  by  the 
treasurer,  and  by  the  acting  president  of  the  State,  Jose  T.  Roldan, 
which  literally  reads  as  follows:  "The  citizen  who  has  built  the 
Maracay  aqueduct,  is  a  creditor  to  the  treasury  of  the  State  of  Miranda 
for  the  sum  of  41,200  bolivars  in  accordance  with  the  liquidation  of 
the  accounts  made  on  this  date,"  is  not  a  proof  that  Henry  T.  Duke 
was  a  creditor  to  the  State  of  Miranda  for  the  said  sum,  the  terms 
of  that  certificate  being  veiy  indefinite. 

The  other  part  of  the  claim  has  not  been  proven,  not  having  been 
produced — the  contract  made  with  the  department  of  public  works  for 
the  construction  of  the  house  in  La  Guaira — but  on  the  contrary,  it 
appears  from  the  reproduced  paragraohs  from  the  memory  of   said 


REPORT  OF  ROBERT  C.  MORRIS.  415 

department  for  the  3'ear  1899  that  Duke  received  the  first  pa3nnent 
of  $1,200  on  account  of  the  price  of  a  house  which  he  should  have 
delivered  fully  completed  a  short  time  afterwards,  and  Mr.  Duke's 
attorney  says  in  his  exposition  addressed  to  this  Commission  that  Duke 
was  unable  to  complete  the  house  on  account  of  the  political  troubles 
that  caused  the  suspension  of  the  public  works. 

The  foundation  of  this  claim  not  having  been  sufficiently   proved 
it  must  be  disallowed. 

The  United    States  and  Venezuelan   Claims   Commission,  sitting  at 

Caracas,  Venezuela. 

DECISION. 


The  United  States  of  America  on   behalf  ~ 
of  Henry  T.  Duke,  claimant, 

V. 

The  Republic  of  Venezuela. 


y  No.  40. 


The  above-entitled  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  the  ]?art  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Venezxiela. 
Attest  to  decision: 

Harky  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  pa/rt  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  October  2,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Sofia  Ida  Wiskow  do  Rudolfi'  and  Fred- 
crick  William  Rudolff,  heirs  at  law  of  Henry 
Frederick  Rudolf!',  claimants. 

The  Republic  of  Venezuela. 


-No.  41. 


This  claim  was  presented  to  the  Conmiission  on  the  memorial  of  tlic 
claimants,  and  was  supported  at  the  time  of  ])resentufion  l)y  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  filed  l>y  tlie 
agent  of  Venezuela  in  answei-  and  a  britd"  was  tiled  l)y  the  agent  of  flie 
United  States  in  replication. 


416  REPORT  OF  ROHKUT  (\  MORRIS. 


|'rnnislnti(m.] 

Sofia  Ida  Wiskow  dk  Kudt.off  and  Fredkuick 

Williiini  Kudlotf, 

v. 

Venkzukla. 

ANSWER. 


'  Claim  No.  4:1. 


IhmorahJe  memher^  of  the  Yenezueldii- American.  Mixed  C^oiiniii.sxlon  : 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  Sofia  Ida  Wiskow  dc 
Kudlort"  and  Frederick  William  Rudloti',  and  respectfully  informs  this 
tribunal. 

Before  proceeding  to  answer  this  claim  upon  the  merits,  the  under- 
signed should  submit  to  the  consideration  of  the  tribunal  a  plea  to  the 
jurisdiction  which  ought  to  be  determined  beforehand  and  which  is 
the  following: 

Under  date  May  S,  1901,  Sofia  Ida  Wiskow  de  Rudloff  and  Fred- 
erick W.  Rudloff,  through  their  attorney  in  fact,  Dr.  AdcanioNegretti, 
sued  the  nation  before  the  federal  court  in  order  that  they  might 
compel  it  to  pa}"  them,  in  their  capacities  of  heirs  of  Henry  F.  Kudlotf, 
the  sum  of  3,698, 801  l)olivars  for  damages  originating  out  of  the 
breach  of  a  contract  which  the  claimants  alleged  their  predecessor  in 
interest  had  entered  into  with  the  Government  of  Venezuela.  On 
account  of  the  fact  that  the  claimants  sought  the  jurisdiction  of  the 
tribunals  of  Venezuela  to  submit  to  them  their  claim — a  voluntary 
and  deliberate  act  on  their  part — it  is  evident  that  they  submitted 
themselves  to  the  provisions  of  local  legislation,  both  substantive  and 
adjective,  in  all  and  ever3"thing  that  might  pertain  to  the  suit  insti- 
tuted. Now,  then,  article  216  of  the  Code  of  civil  procedure  now  in 
force  provides:  "If  the  discontinuation  is  limited  to  the  proceeding, 
it  can  not  be  had  without  the  consent  of  the  opposite  part3^"  The 
federal  court  has  assumed  jurisdiction  over  and  decided  the  claim  in 
question  in  the  department  of  first  instance.  Both  parties  have 
appealed  from  its  decision,  and  the  court  of  appeals  has  taken  cogni 
zance  of  the  matter. 

The  party  defendant  not  having  given  its  consent  for  the  discontin- 
uation in  tiie  manner  in  which  the  claimants  have  done  so,  it  is  clear 
tliat  these  latter  can  not  withdraw  the  claim  from  the  jurisdiction  of 
the  last  tribunal  in  order  to  submit  it  to  this  Commission. 

The  protocol  signed  in  Washington  between  the  two  governments 
can  not,  in  any  wa}^  refer  to  the  claims  of  American  citizens  wdiich 
are  in  the  State  of  the  present  case,  because  this  would  be  virtually  to 
deny  the  competence  of  the  Venezuelan  tribunals  to  decide  questions 
which  have  been  submitted  to  them  by  parties  litigant  and  by  the 
operation  of  the  local  law. 

Besides,  it  is  to  be  observed  that  by  article  12  of  the  contract  entered 
into  by  the  predecessor  in  interest  of  the  claimants,  the  parties  stipu- 
lated that  the  doubts  and  controversies  whi<'h  might  arise  by  reason  of 
it  should  ])e  decided  by  the  tribunals  of  the  Republic,  and  could  never 
give  rise  to  international  claims. 

The  case  of  a  denial  of  justice  can  not  be  alleged,  since  aside  from 
the  fact  that  the  department  of  first  instance  of  the  federal  court  has 


REPORT  OF  ROBERT  C.  MORRIS.  4l7 

decided  favorably  to  the  claimants,  the  jurisdiction  of  the  tribunals  of 
the  Republic  has  hot  been  exhausted  in  this  litigation. 

In  case  the  honoi-able  tribunal  should  decide  that  the  preliminary 
objection  interposed  is  not  well  founded,  the  undersigned  proceeds  to 
give  his  answer  to  the  claim  on  the  merits  and  denies  it  in  all  its  parts 
for  the  following  reasons: 

(1)  Because  the  nation  was  not  a  party  to  the  contract  entered  into 
by  the  predecessor  in  interest  of  the  claimants. 

(2)  Because  the  acts  which  the}^  say  were  committed  in  violation  of 
such  contract  were  done  b}'  municipal  authorities. 

(3)  Because  in  federal  republics  municipalities  are  autonomous 
entities  and  juridical  personalities,  capable  of  contracting  rights  and 
obligations,  and  for  whose  acts,  in  the  matter  of  contracts,  the  State 
can  not  be  responsible. 

(4)  Because  the  damages  claimed  are,  in  their  greater  part,  remote, 
unascertained,  and  indirect  damages  for  the  recovery  of  which  the  civil 
law  gives  no  right. 

(5)  Because  the  contractor  violated  the  contract  mlide  with  the  nuuiici- 
pality  in  the  first  place,  disposing  during  the  time  when  he  was  in 
charge  of  the  market  of  the  whole  of  its  rents. 

In  proof  of  the  claims  alleged,  the  undersigned  takes  the  libertv  of 
producing  herewith  Nos.  8772,  8773,  8775,  and  8776,  of  the  Otiicial 
Gazette,  wherein  are  inserted  the  briefs  which,  in  the  former  trial  he 
brought  forward  in  his  character  of  attorney-general  of  the  nation. 

For  the  reasons  set  forth,  and  those  which  will  be  found  in  the 
briefs  produced,  the  claim  ought  to  be  disallowed. 

Caracas,  July  31,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Fe])ru- 

ary  17,  1903,  between  the  United  States  of  America  and 

the  Republic  of  Venezuela. 


The  United  States  of  America  ox  behalf 
of  Sofia  Ida  Wiskow  de  Rudlofl'  and  Freder- 
ick William  Rudlotf,  heirs  at  law  of  Henry 
Frederick  Rudlofl',  claimants. 

The  Republic  of  Venezuela. 


^  No.  41. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  has  pi'esented  the  claim  of  Sofia  Ida  AMskow  de 
Rudlofl'  and  P'rederick  William  Rudlofl,  American  citizens,  as  the 
heirs  at  law  of  Henrv  Frederick  Rudlofl,  deceased,  for  the  sum  of 
3,698,801  l)olivars,  and  interest,  for  the  loss  of  capital  and  for  damages 
arising  from  the  abrogation  by  the  Govennnent  of  Venezuela  of  a 
certain  contract  between  the  United  States  of  Venezuela  and  IIimiiv 
Frederick  Rudlofl',  set  forth  in  the  Official  (Jazette  Ko.  5717,  dated  the 
8th  of  Februarv,  1893,  which  has  been  ])lac('d  in  evidence. 

By  this  contract  Mr.  Rudlofl  was  put  in  ])ossessi()n  of  the  market  of 
San  Jacinto  and  of  the  square,  grounds,  and  building  appurtenant 
thereto  by  public  functionaries  duly  authorized  and  representing  the 

S.  Doc.  317,  5S-2 27 


418  REPORT  OF  ROBERT  C.  MORRTS. 

minister  of  public  Avorks  and  the  jiovernnient  of  the  Federal  district. 
Under  the  contract  Mr.  Kudloff  began  the  work 'of  constructing  a 
market  building,  but  met  with  nuich  hostility  from  Government 
employees  tending  to  prevent  the  carrying  out  of  the  contract.  By 
an  order  of  the  chief  executive  of  the  United  States  of  Venezuela, 
the  governor  of  the  P>deral  district  placed  the  contract  before  the 
municipal  council  who,  on  the  8th  day  of  September,  1893,  by  a  decree 
declared  it  null  and  authorized  the  governor  to  take  possession  of  the 
market  and  to  demolish  the  work  done  by  Mr.  Rudloff.  This  decree 
was  carried  out  bv  the  public  functionaries,  notwithstanding  the  pro- 
tests of  Mr.  Rudloff. 

On  the  2<)th  of  September,  1893,  the  matter  was  called  to  the  atten- 
tion of  the  (rovernment  of  the  United  States  through  the  Department 
of  State.  The  Government  of  the  United  States,  although  acknowledg- 
ing the  acts  of  the  Venezuelan  authorities  to  have  been  arbitrary  and 
unjust,  advised  Mr.  Rudloti',  as  a  preliminary  step,  that  he  should  seek 
redress  before  the  competent  court  of  Venezuela.  In  accordance  with 
this  suggestion,  an"  action  was  commenced  against  the  Government  of 
Venezuela  on  the  8th  day  of  May,  1901,  in  the  federal  court.  Judg- 
ment was  given  by  the  chamber  of  first  instance  of  the  federal  court 
as  appears  in  No,  8770  of  the  Official  Gazette  of  the  llth  of  February, 
1903.  This  decision  recognized  the  existence  and  validity  of  the  con- 
tract, the  arbitrary  and  unlawful  acts  which  caused  the  failure  to  fulfill 
and  perform  the  same  and  the  responsibility  of  the  Federal  Government. 
An  appeal  was  taken  from  this  decision  on  the  16th  of  February,  1903. 

The  protocol  of  an  agreement  between  the  United  States  of  America 
and  the  Republic  of  Venezuela,  for  the  submission  to  arbitration  of  all 
unsettled  claims  against  Venezuela,  was  signed  on  the  day  after  the 
ap2^e(d  vxis  taken  creating  this  high  commission  to  examine  and  decide 
all  claims  ow^ned  by  citizens  of  the  United  States  against  the  Republic 
of  Venezuela  which  had  not  been  settled  by  diplomatic  agreement  or 
by  arbitration  between  the  two  Governments.  The  claim  has,  in  con- 
sequence, been  brought  before  this  tribunal  for  its  decision. 

I. 

In  the  answer  of  Venezuela,  objection  is  raised  to  this  claim  on  the 
question  of  the  jurisdiction  of  this  hi^h  tribunal  and  also  to  the  merits 
of  the  claim.  Objection  to  the  jurisdiction  is  made  on  account  of  the 
fact  that  the  claimant  sought  the  jurisdiction  of  the  tribunals  of  Vene- 
zuela to  submit  to  them  their  claim  as  a  voluntary  and  deliberate  act 
on  their  part,  and  it  is  asserted  that  it  is  evident  that  they  submitted 
themselves  to  the  provisions  of  local  legislation  in  everything  that 
might  appertain  to  the  suit.  The  honorable  agent  of  Venezuela  takes 
the  ground  that  the  federal  court  of  Venezuela  has  assumed  jurisdic- 
tion over  and  decided  the  claim  in  the  chamber  of  first  instance,  and 
that  both  parties  having  appealed  from  its  decision  and  the  court  of 
appeals  having  taken  cognizance  of  the  matter,  it  is  impossible  to  bring 
this  claim  before  this  high  Commission  because  of  the  provision  of 
Article  216  of  the  Code  of  Civil  Procedure,  which  provides,  "  If  the  dis- 
continuation is  limited  to  the  proceeding,  it  can  not  be  had  without  the 
consent  of  the  opposite  party."  The  honorable  agent  of  Venezuela  con- 
tends that  Venezuela,  not  having  given  its  consent  for  the  discontinua- 
tion of  the  suit  before  the  court  of  appeals,  the  claimant  can  not  with- 


REPORT  OF  ROBERT  C.  MORRIS.  419' 

draw  the  claim  from  the  jurisdiction  of  that  tribunal  in  order  to  submit 
it  to  this  Commission. 

In  reply  to  this  contention,  we  submit  that  there  has  been  a  full  and 
complete  consent  on  the  part  of  Venezuela  to  the  submission  of  this 
claim  to  this  high  tribunal  b}^  virtue  of  the  protocol  signed  in  Wash- 
ington on  the  17th  of  February,  1903.  In  that  instrument  Venezuela 
specifically  agrees: 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  which  have  not  been  settled  by  diplomatic  agreement  or  by  arbitration 
between  the  two  Governments,  and  which  shall  have  been  presented  to  the  couunis- 
sion  hereinafter  named  by  the  Department  of  State  of  the  United  States  or  its  lega- 
tion at  Caracas  shall  be  examined  and  decided  by  a  mixed  commission.     *     *    * 

It  is  evident  that  by  this  act  there  was  a  perfect  agreement  on  the 
part  of  Venezuela  that  this  claim  should  be  submitted  to  this  tribunal, 
and  from  the  act  of  the  claimants  in  presenting  this  claim  it  is  perfectly 
clear  that  they  have  availed  themselves  of  the  right  to  submit  their 
claim.     Moreover  the  Code  of  Civil  Procedure  provides  in  article  102: 

Art.  492.  In  any  condition  of  the  case  in  which  the  parties  may  signifv  a  wish  to 
have  it  submitted  to  arbitrators,  the  course  of  proceedings  shall  be  suspended  and 
the  case  immediately  passed  over  to  those  named. 

Also  article  11  of  the  same  code  provides  that: 

Art.  11.  In  the  cases  of  the  application  of  private  international  law,  the  judges 
shall  first  consider  the  jjublic  treaties  of  Venezuela  with  the  respective  nation,  with 
regard  to  the  point  in  question.     *     *     * 

Which  provision  is  in  conformity  with  article  723  of  this  same  code, 
which  provides  that  the  regulations  of  Title  XVIII  shall  be  subordi-' 
nate  to  international  treaties  and  conventions. 

It  is  further  contended  by  the  honorable  agent  of  Venezuela,  in  his 
answer,  that  article  13  of  the  contract  entered  into  ])y  the  Government 
of  Venezuela  and  Mr.  Rudloff  provided  that  all  (l()iil)ts  or  controver- 
sies arising  on  account  of  the  contract  shall  be  decided  by  the  compe- 
tent tribunals  of  the  Republic,  and  sliould  not  give  rise  to  international 
claims,  and  that  therefore  the  claim  can  not  be  presented  to  this  Com- 
mission. 

In  reply  to  this  we  submit  the  following  considerations.  By  tlic 
express  language  of  this  article  the  questions  which  it  stipulates  shall 
be  submitted,  if  they  arise,  to  the  Venezuelan  courts  are  oidy  <[ues- 
tions  relating  to  the  interpretation  and  efi'ect  of  the  agreement ;  that 
is  to  say,  questions  which  arise  out  of  tiie  agreement.  This  clause 
was  not  intended  to  apply  to  and  can  not  be  construed  to  apply  to 
a  controversy  with  relation  to  the  existence  of  the  contract,  nor  to 
a  claim  arising  from  the  annulment  and  impairment  of  the  right 
thereby  granted  by  a  voluntary,  arbitrary  act  of  the  Venezuelan  ( lov- 
crnment.  As  has  been  clearly  shown  the  substantial  cause  of  action 
in  this  case  is  not  the  contract  nor  its  enforcement,  but  the  cause  of 
action  arises  from  the  wrongful  acts  of  the  Venezuelan  (iovernmeiit 
in  abrogating  and  destroying  tlui  right  grant(Kl  l)y  the  contract.  This 
question  is  not  included  in  the  sti))ulati<)ns  of"  the  contract,  and  is  not 
one  of  the  questions  which  must  be  sul)inittcd  to  the  local  trihiuials  of 
Venezuela.  Again,  this  provision  of  the  contract  if  Itinding  sit  all 
was  ecjually  l)inding  upon  both  ])ai'ties.  and  the  oltligiition  llicirby 
incurn^d  was  as  binding  iq)on  the  (lOVcM'nnicnt  of  Venezuela  as  upon 
the  claimants.  The  Government  of  Venezuela  violated  this  pro\  ision 
of  the  contract,  and  this  claim  arises  because  of  this  violation.     It  was 


420  KEPOKT    OF    KOHKirr    C.    MORRIS. 

tho  duty  of  the  (Jovoriimont  of  Venezuela,  if  it  had  cause  of  com- 
plaint auainst  the  party  contracting  with  it,  to  apply  to  its  own  courts 
for  relief.  This  was  its  duty  as  a  matter  of  natural  law  as  well  as 
under  the  terms  of  tiiis  ai'ticlc  of  the  contract.  Having  violated  this 
duty  and  (iiis  provision  of  the  contract  in  this  respect,  a  right  accrues 
to  the  claimants  against  it  which  is  a  proper  subject  of  international 
intervention,  and  this  controvers}-  the  claimants  are  not  bound  to  sul)- 
uiit  to  the  local  courts  of  Venezuela  for  adjudication,  cither  as  a  mat- 
ter of  international  law  or  by  the  article  of  the  contract. 

AYe  su))mit  tliat  the  competenc}^  of  this  high  Commission  to  take 
cognizance  of  and  decide  this  claim  is  incontrovertible,  primarily  by 
virtue  of  the  powers  conferred  upon  it  b}'  the  agreement  between  the 
United  States  of  America  and  Venezuela,  and  secondarily  l)v  virtue  of 
the  provisions  of  the  Code  of  Civil  Procedure  of  Venezuela  above  set 
forth. 

11. 

After  concluding  his  argument  upon  the  question  of  jurisdiction, 
the  honorable  agent  of  Venezuela  proceeds  to  make  answer  to  the 
claim  on  merits,  and  denies  it  in  all  its  parts. 

(1)  The  first  assertion  in  the  answer  is  that  the  nation  was  not  a 
part}^  to  the  contract  entered  into  by  Mr.  Rudloff.  In  re[)ly  to  this, 
we  call  the  attention  of  the  Commission  to  the  wording  of  the  contract 
which  has  been  submitted  in  evidence.     In  its  beginning  it  reads: 

The  minister  of  public  works  and  the  governor  of  the  Federal  district,  sufficiently 
'  authorized  by  the  Chief  of  the  Executive  Power,  parties  of  the  first  part;  and  Henry 
F.  Rudloff,  civil  engineer,  citizen  of  the  United  States  of  America,  residing  in  Cara- 
cas, party  of  the  second  part. 

In  article  1,  the  party  of  the  second  part  obligated  himself  to 
construct  a  public  market  upon  grounds  which  were  referred  to  as 
"the  properties  of  the  municipalit}"  or  the  government."  In  article 
4,  "the  National  Government  and  the  city  of  Caracas  cede  to  the  con- 
tractor the  buildings  and  the  grounds  mentioned."  In  article  10,  the 
party  of  the  second  part  was  given  the  right  to  import  through  the 
Federal  custom-house  of  La  Guayra  free  of  all  tariff  duties  all  materials 
and  tools  which  he  might  require  in  construction  of  the  market.  And 
in  article  11  it  Avas  provided  that  during  the  time  of  the  contract 
neither  the  National  Government  nor  the  municipality  would  allow 
any  other  market  to  be  constructed  in  Caracas. 

We  submit  that  this  sufficiently  answers  the  contention  of  Vene- 
zuela above  referred  to. 

(2)  It  is  asserted  by  Venezuela  that  the  acts  complained  of  in  vio- 
lation of  the  contract  were  done  by  municipal  authority,  and  that  the 
Federal  Government  is  therefore  not  responsible. 

We  again  call  the  attention  of  the  Commission  to  the  action  of  the 
governor  of  the  Federal  district  who  in  obedience  to  the  order  of  the 
Chief  Executive  of  the  United  States  of  Venezuela  submitted  the 
contract  to  the  municipal  council,  who  on  the  8th  of  September,  1898, 
declared  it  null,  authorized  the  Government  to  take  possession  of  the 
market  and  ordered  the  demolition  of  the  work.  It  is  evident,  there- 
fore, that  the  Federal  Government  is  directly  responsible  for  the 
wrongful  acts  committed, 

(3)  It  is  contended  bj'^  Venezuela  that  the  damages  claimed  are  in 
their  greater  part  remote,  indirect,  and  unascertained,  and  that  there  is 


REPORT  OF  ROBERT  C.  MORRIS.  421 

no  right  to  their  recovery.  This  is  certain!}'  in  opposition  to  the  find- 
ings of  the  Federal  court  which  gave  a  decision  in  favor  of  the  claim- 
ants. Moreover,  the  evidence  as  to  the  damages  suffered,  which  has 
been  submitted  to  this  Commission,  is  full  and  complete,  and  is  suffi- 
cient upon  which  to  base  an  award  in  accordance  with  the  amount 
claimed. 

(4)  Objection  is  made  by  Venezuela  that  the  contractor  violated  the 
contract  by  disposing,  during  the  time  that  he  was  in  charge  of  the 
markets,  of  the  whole  of  its  rents.  In  reply  to  this  we  refer  to  article 
5  of  the  contract  which  gave  to  Mr.  Rudloff'  exclusive  charge  of 
the  management  and  collection  of  the  proceeds  of  the  market.  This 
objection,  therefore,  can  not  be  sustained. 

III. 

We  submit  that  an   award  should  be  made  for  the  full   amount 
claimed,  together  with  interest. 
Respectfully  submitted. 

Robert  C.  ]Morris, 

Agent  of  the  United  St((tes. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf^, 
of  Sofia  Ida  Wiskow  Rudloff  and  Frederik  W.  | 
Rudloff,  claimants.  '-No.  41. 

V.  I 

The  Republic  of  Venezuela.      J 

ON  JTJUISDICTION. 

Bainbridge,  Cominissioner: 

The  Government  of  Venezuela  demurs  to  the  jurisdiction  of  the  Com- 
mission in  respect  to  the  above-entitled  claim,  and  bas#s  its  denmrrer 
on  the  following  grounds: 

First.  That  on  Mav  6.  1901,  Sofia  Ida  Wiskow  Rudloff  and  Fred- 
erik W.  Rudloff  sued'  the  nation  before  the  Federal  court  in  order  to 
compel  it  to  pav  them,  in  their  capacities  as  heirs  of  Henry  »I.  Rudloff', 
the  sum  of  3,698,801  bolivares  for  damages  originating  in  an  alleged 
breach  of  the  contract  entered  into  between  theirpredecessor  in  interest, 
the  said  Henry  J.  Rudloff,  and  the  Government  of  Venezuela,  for  the 
construction  o'^f  a  market  buikling  in  Caracas.  It  is  argued  that  as  the 
claimants  sought  the  jurisdiction  of  the  tribunals  of  Venezuela  to  sulv 
mit  to  them  their  claim,  a  voluntary  and  deliberate  act  on  their  i)!irt, 
they  have  submitted  themselves  to  the  provisions  of  local  legislation, 
both  substantive  and  adjective,  in  all  and  everything  that  might  per- 
tain to  the  suit;  that  the  Federal  court  has  assumed  jui'isdiction  ovci- 
and  decided  the  claim;  that  the  parties  have  l)()th  appealed  from  the 
decision  of  the  court  and  the  court  of  appeals  has  taken  cognizance  ot 
the  matter;  that  article  2lH  of  the  Code  of  Civil  Procedure  in  force 
provides:  "If  the  discontinuation  is  limited  to  the  proceeding,  it  can 
not  be  had  without  the  consent  of  the  opposite  party,"' and  that  the 
defendant  (Government  not  having  given  its  consent  for  the  discontin- 
uaucc  in  the  manner  in  which  the  claimants  have  done  so,  the  claimants 


422  REPORT  OF  ROBERT  C.  MORRIS. 

can  notwithdraw  the  claim  from  the  jurisdictioivf rom  the  Federal  court 
in  order  to  submit  it  to  the  Conmiission. 

Second.  That  article  12  of  the  aforesaid  contract  provides  that  ""the 
doul)ts  and  controversies  that  may  arise  on  account  of  this  contract 
shall  be  decided  by  the  competent  tribunals  of  the  Republic  in  con- 
formity with  the  laws  and  shall  not  give  reason  for  any  international 
reclamations,''  and  that  the  case  of  a  denial  of  justice  can  not  be  alleged 
because  the  court  of  tirst  instance  has  decided  the  case  favorably  to  the 
claimants,  and  the  jurisdiction  of  the  tribunals  of  the  Republic  has  not 
been  exhausted  in  the  litigation. 

These  two  grounds  of  demurrer  will  be  considered  here  in  the  order 
stated.  But  it  is  to  be  remarked  at  the  outset  that  the  Commission, 
as  u  court  of  last  resort,  is  the  sole  and  conclusive  judge  of  its  own 
jurisdiction.  Mr.  Webster,  then  Secretary  of  State,  said,  in  relation 
to  the  United  States  and  Mexican  Commission  of  1839,  that  it  was 
'' essentially  a  judicial  tribunal  with  independent  attributes  and  powers 
in  regard  to  its  peculiar  functions,"  and  that  "its  right  and  duty,  like 
those  of  other  judicial  bodies,  were  to  determine  upon  the  nature  and 
extent  of  its  own  jurisdiction,  as  well  as  to  consider  and  decide  upon 
the  merits  of  the  claims  which  might  be  laid  before  it."  The  deter- 
mination by  the  Commission  of  the  objections  to  its  jurisdiction  raised 
by  the  Government  of  Venezuela,  as  above  set  forth,  is  clearly  within 
the  scope  of  its  delegated  authorit}'. 

In  determining  the  tirst  objection,  certain  material  facts  must  be 
borne  in  mind.  On  the  6th  of  Mav,  1901,  the  claimants  brought  suit 
in  the  chamber  of  first  instance  of  the  Federal  court  against  the  Gov- 
ernment of  Venezuela.  This  suit  proceeded  to  trial  and  judgment, 
which  was  entered  on  the  lith  of  February,  1903.  On  February  16, 
1903,  the  attorney -general,  on  behalf  of  the  Government,  appealed 
from  the  judgment,  and  on  the  same  day  the  claimants  appealed  from 
it.     The  case  thus  remains  pending  in  the  courts. 

The  parties  to  an  action  pending  in  court  ma}"  alwaj^s  by  agreement 
submit  the  whole  or  any  part  of  the  matter  or  matters  in  issue  to  arbi- 
tration. Indeetl,  the  submission  to  arbitration,  in  the  absence  of  col- 
lusion or  fraud,  is  favored  b}^  courts  upon  broad  grounds  of  public 
polic}^  This  principle  of  arbitration  enters  into  and  forms  a  part  of 
every  civilized  code  of  jurisprudence,  and  to  this  rule  the  jurispru- 
dence of  Venezuela  is  no  exception.  Article  493  of  the  Venezuelan 
Code  of  Civil  Procedure  provides: 

In  any  condition  of  the  case  in  which  the  parties  may  signify  a  wish  to  have  it 
submitted  to  arbitrators,  the  course  of  proceeding  shall  be  suspended  and  the  case 
immediately  passed  over  to  those  named. 

The  rule  above  stated  is  the  same,  so  far  as  it  touches  the  question 
here,  where  the  arbitration  is  between  nations  and  the  submission  con- 
cerns a  private  claim.  Only  the  Government  of  the  claimant,  acting 
in  his  behalf,  enters  into  the  agreement  for  arbitration. 

In  this  case  the  parties  to  the  action  pending  in  the  local  tribunals 
are  on  the  one  hand  the  claimants,  citizens  of  the  United  States,  as 
plaintiffs,  and  the  Government  of  Venezuela  on  the  other  as  defend- 
ant. Have  these  parties  litigant  agreed  to  submit  the  cause  to  the 
arbitration  of  this  international  tribunal?  If  they  have,  the  agree- 
ment is  binding  upon  both. 

The  appeal  was  taken  by  l)oth  parties  from  the  judgment  of  the 
lower  court  on  February  iO,  1903.     On  the  following  day  the  Gov- 


REPORT  OF  ROBERT  C.  MORRIS.  423 

ernraent  of  Venezuela  signed  the  protocol  constituting  this  Commis- 
sion, and  by  that  act  agreed  to  submit  to  the  arbitrament  of  this  tri- 
bunal: 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Republic 
of  Venezuela  Avhich  have  not  been  settled  by  diplomatic  agreement  or  by  arbitra- 
tion between  the  two  Governments. 

Nothing  could  be  clearer  than  the  language  thus  emplo3-ed  to  define 
the  scope  of  the  jurisdiction  conferred,  or  than  that  the  jurisdiction 
conferred  is  inclusive  of  such  a  claim  as  this  one  of  the  Rudlotf  heirs 
against  the  Venezuelan  Government.  The  signing  of  the  convention 
by  the  two  Governments  was  in  the  solemn  exercise  of  the  highest 
prerogative  of  sovereignt}-,  and  it  is  the  duty  of  the  Commission  to  so 
interpret  the  terms  of  the  convention,  and,  under  its  oath,  so  to  act  as 
to  give  effect  to  the  intention,  thus  unequivocally  expressed,  of  the 
high  contracting  parties. 

Vattel,  speaking  of  the  interpretation  of  treaties,  says: 

The  interpretation  which  renders  a  treaty  null  and  without  effect  can  not  be  admit- 
ted. It  ought  to  be  interpreted  in  such  a  manner  as  it  may  have  its  effect,  and  not 
to  be  found  vain  and  nugatory.     (Vattel,  ch.  17,  sec.  283.) 

The  claiin  presented  here  is  a  claim  owned  b}-  citizens  of  the  Qnited 
States  of  America  against  the  Republic  of  Venezuela.  It  has  not  been 
settled  by  diplomatic  agreement  or  b}^  arbitration.  The  Government 
of  Venezuela  has  in  the  most  solemn  manner  agreed  to  submit  such 
claims  to  the  jurisdiction  of  this  Commission,  under  the  plain  terms 
of  the  convention  of  February  17,  1903.  The  claimants,  availing 
themselves  of  the  action  of  their  Government  in  their  behalf,  agree 
to  submit  their  claim  to  the  jurisdiction  of  this  Commission  by  its 
presentation  here. 

The  indentical  objection  to  the  jurisdiction  was  urged  in  the  case  of 
Selwyn  v.  Venezuela  before  the  British  and  Venezuelan  Claims  Com- 
mission now  in  session  at  this  capital.  In  sustaining  the  jurisdiction 
of  the  Commission,  Plumley,  umpire,  said: 

International  arbitration  is  not  affected  jurisdictionally  by  the  fact  that  the  same 
question  is  in  the  courts  of  one  of  the  nations.  Such  international  tribunal  has  power 
to  act  without  reference  thereto,  and  if  ju(]<.Mncnt  has  been  pronounced  by  ^uch 
court,  to  disregard  the  same,  so  far  as  it  affects  the  indemnity  to  the  individual,  and 
has  power  to  make  an  award  in  addition  thereto  or  in  aid  thereof,  as  in  the  given 
case  justice  may  require.  Within  the  limits  prescribed  by  the  convention  constituting 
it,  the  parties  have  created  a  tribunal  superior  to  the  local  courts. 

In  fact,  the  law  which  governs  this  Commission,  and  which  it  nuist 
apply  in  the  exercise  of  its  functions,  is  not  the  municipal  law  ()f 
either  of  the  contracting  nations,  but  it  is  that  jiaramount  code  which 
is  obligator}'  upon  both. 

Says  Hall: 

International  law  consists  in  certain  rules  of  conduct  which  modern  civilized  staten 
regard  as  binding  on  them  in  their  relations  with  one  another  with  a  force  compara- 
l)le  in  nature  and  degree  to  that  binding  the  conscientious  i)erson  to  obey  the  laws  ol 
his  country,  and  which  they  also  regard  aa  enforceable  by  api)ropriate  means  inca.-^e 
of  infringement. 

These  rules  of  conduct  recognize  the  right  and  duty  of  a  state  to 
protect  its  citizens  or  subjects  at  home  or  abroad,  and  the  correspond- 
ing obligation  of  a  state  to  make  due  re])aration  and  give  just  com- 
pensation for  injuries  inflicted  upon  another  state  or  upon  its  citizens 
or  subjects.  And  whenever  two  independent  nations  have  by  solemn 
compact  provided  a  forum  to  determine  the  extent  of  the  injuries 


4 '2  4  REPOKT  OF  ROBERT  C.  MORRIS. 

intlu-tod  by  the  one  upon  the  otluT,  and  the  means  of  redress  therefor, 
the  leo-islation  of  neither  of  the  eontraetino-  parties  can  interpose  to 
limit  or  defeat  the  jurisdiction  of  that  forum  in  respect  of  any  matter 
fairly  within  the  purview  of  the  compact.  The  two  Governments  have 
for  the  purposes  expressed  created  a  tribunal  superior  to  the  local 
courts — 

ail  independent  judicial  tribunal  possessed  of  all  tlie  powers  and  endowed  with  all 
the  properties  whicli  should  distinguish  a  court  oi  high  international  jurisdiction, 
alike  competent,  in  the  jurisdiction  conferred  upon  it,  to  bring  under  judgment  the 
decisions  of  the  local  courts  of  both  nations  and  beyond  the  competence  of  either 
Government  to  interfere  with,  direct,  or  obstruct  its  deliberations. 

II. 

The  second  olijection  to  the  jurisdiction  of  the  Commission  raised  by 
the  Government  of  Venezuela  is  based  upon  article  12  of  the  contract, 
which  reads  as  follows: 

The  doubts  or  controversies  that  may  arise  on  account  of  this  contract  shall  be 
decided  by  the  competent  courts  of  the  Republic,  in  conformity  with  the  laws,  and 
shall  not  give  reason  for  any  international  reclamation. 

The  memorial  states  that,  pursuant  to  an  order  of  the  National  Execu- 
tive, the  governor  of  the  Federal  District  placed  the  contract  in  question 
before  the  municipal  council,  who,  on  September  8,  1903,  by  a  decree 
declared  it  null  and  authorized  the  governor  to  take  possession  of  the 
market  and  demolish  the  work  done  by  Rudloff,  and  that  this  decree 
was  carried  out  by  the  public  functionaries,  notwithstanding  the  pro- 
tests of  Mr.  Rudlofi'.  For  the  purpose  of  this  preliminary  inquiry  as 
to  jurisdiction,  the  statements  in  the  memorial  are  to  be  considered  as 
true,  the  sole  question  for  the  present  being  whether,  if  true,  this 
Commission  can  take  cognizance  of  the  claim. 

In  regard  to  that  portion  of  article  12  of  the  contract  inhibiting 
international  reclamation,  it  is  perfectly  obvious  that  under  established 
principles  of  the  law  of  nations  such  a  clause  is  wholly  invalid.  A 
contract  between  a  sovereign  and  a  citizen  of  a  foreign  country  not  to 
make  matters  of  diflferences  or  disputes  arising  out  of  an  agreement 
between  them  or  out  of  any  anything  else  the  subject  of  an  interna- 
tional claim,  is  not  consonant  with  sound  public  policy  and  is  not 
within  their  competence.  In  the  case  of  Flanagan,  Bradley,  Clark  & 
Co.  V.  Venezuela,  before  the  United  States  and  Venezuelan  Commis- 
sion of  1890,  Mr.  Commissioner  Little  said: 

It  (i.  e.,  such  a  contract)  would  involve,  pro  tanto,  a  modification  or  suspension  of 
the  pulDlic  law,  and  make  the  sovereign  in  that  instance  to  disregard  his  duty  toward 
the  citizen's  own  government.  If  a  state  may  do  so  in  a  single  instance,  it  may  in 
all  cases.  Bv  this  means  it  could  easily  avoid  a  most  important  part  of  its  niterna- 
tional  obligations.  It  would  only  have  to  provide  by  law  that  all  contracts  made 
within  its  jurisdiction  should  be  subject  to  such  inhibitory  condition.  For  such  a 
law,  if  valid,  would  form  a  part  of  every  contract  as  fully  as  if  expressed  m  terms 
upon  its  face.  Thus  we  should  have  the  spectacle  of  a  state  modifymg  the  niterna- 
tional  law  relative  to  itself.  The  statement  of  the  proposition  is  its  own  refutation. 
The  consent  of  the  foreign  citizens  concerned  can,  in  my  opinion,  make  no  differ- 
ence—confer no  such  authority.  Such  language  employed  in  a  contract  contemplates 
the  potential  doing  of  that  bv  the  sovereign  toward  the  foreign  citizen  for  which  an 
international  reclamation  may  rightfully  be  made  under  ordinary  circumstances. 
Whenever  that  situation  arises— that  is,  whenever  a  wrong  occurs  of  such  a  character 
as  to  justify  diplomatic  interference— the  government  of  the  citizen  at  once  becomes 
a  party  concerned.  Its  rights  and  obligations  in  the  premises  can  not  be  affected  by 
any  precedent  agreement  to  which  it  is  not  a  party.  Its  obligation  to  protect  its  own 
citizens  is  inalienable. 


REPORT  OF  ROBERT  C.  MORRIS.  425 

The  contingency  suggested  bj'  Commissioner  Little  appears  to  have 
happened  in  the  case  of  Venezuela,  since  article  139  of  the  constitu- 
tion of  1901  provides  that  the  inhibitory  condition  against  international 
reclamation  shall  be  considered  as  incorporated,  whether  expressed  or 
not,  in  ever}^  contract  relating  to  public  interest;  and  essentially  the 
same  provision  was  embodied  as  article  119  of  the  constitution  of 
1893.  These  constitutional  provisions  and  legislative  enactments  of 
like  nature  are,  however,  clearly  in  contravention  of  the  law  of 
nations;  the}"  are  pro  tanto  modifications  or  suspensions  of  the  public 
law  and  beyond  the  competence  of  any  single  power.  For  ever}' 
member  of  the  great  family  of  nations  must  respect  in  others  the 
right  with  which  it  is  itself  invested;  and  the  right  of  a  state  to  inter- 
vene for  the  protection  of  its  citizens,  whenever  by  the  public  law  a 
proper  case  arises,  can  not  be  limited  or  denied  by  the  legislation  of 
another  nation.     Mr.  Justice  Stor}'  sa3's: 

The  laws  of  no  nation  can  justly  extend  beyond  its  own  territory,  except  so  far  as 
regards  its  own  citizens.  They  can  have  no  force  to  curtail  the  sovereignty  or  right 
of  any  other  nation  within  its  own  jurisdiction.  'And  however  general  and  compre- 
hensive the  phrases  used  in  our  municipal  laws  may  be,  they  must  always  be 
restricted  in  construction  to  places  and  persons  upon  whom  the  legislature  have 
jurisdiction.     (The  ApoUon,  9  Wheaton,  362.) 

The  subject  of  international  reclamations  is  b}-  its  very  terms  out- 
side the  legislative  jurisdiction  of  any  one  nation.  And  it  is  further- 
more an  utter  fallacy  to  assert  that  this  principle  is  an  encroachment 
upon  national  sovereignty.  That  nation  is  most  truly  sovereign  and 
independent  which  most  scrupulously  respects  the  independence  and 
sovereignty  of  other  powers. 

Neither  is  it  within  the  power  of  a  citizen  to  make  a  contract  limit- 
ing in  any  manner  the  exercise  by  his  own  government  of  its  rights  or 
the  performance  of  its  duties.  A  state  possesses  the  right  and  owes 
the  duty  of  protection  to  its  citizens  at  home  and  abroad.  The  exer- 
cise of  this  right  and  the  performance  of  this  duty  are  as  important 
to  the  state  itself  as  the  protection  afforded  may  be  to  the  individual. 
The  observance  of  its  obligations  is  fundamental  and  vital  to  every 
government.  An  injury  to  one  of  its  citizens  is  an  injui-y  to  the  state, 
which  punishes  for  infraction  of  nnmicipal  law  and  demands  redress 
for  violation  of  public  law  upon  broad  grounds  of  ])ul)Hc  policy.  The 
individual  citizen  is  not  competent  by  any  agreement  he  may  niake  to 
bind  the  state  to  overlook  an  injury  to  itself  arising  through  him.  nor 
can  he  by  his  own  act  alienate  the  obligations  of  the  state  toward  him- 
self except  bv  a  transfer  of  his  allegiance. 

There  remains  to  be  considered  that  portion  of  aiticle  12  of  the  c()n- 
tract  which  i)rovides  that  "the  dou))ts and  controversies  that  may  arise 
on  account  of  this  contract  shall  be  decich'd  by  the  competent  courts 
of  the  Republic  in  conformity  with  the  laws." 

Assuming  for  the  purposes  of  the  examination,  but  in  no  wise  adiiut- 
ting  that  this  portion  of  the  article  refers  to  such  a  case  as  is  pre- 
sented here,  it  must  be  apparent  that  the  oMigations  of  the  artii  le 
bore  equally  and  reciprocallv  upon  both  parties  to  the.  contract,  uimii 
the  Government  of  Venezuefa  as  well  as  upon  the  claimants,  and  that 
when  the  Government,  without  resort  to  the  tril)unais  of  the  Kepuhhe. 
declared  the  contract  luill,  the  claimants  were  absolved  from  all 
obligations  if  any  had  theretofore  existed  in  that  behalf. 

In  the  great  case  of  the  Delagoa  Bay  Company  the  Governm.Mit  ol 


426  REPORT  OF  ROBERT  C.  MORRIS. 

the  United  States  said,  in  reply  to  a  simihii"  objection  raised  1)}'  Portu- 
jjal,  that  it  was  not  Avithin  the  power  of  one  of  the  parties  to  an  aj^ree- 
ment,  tirst,  to  annul  it,  and  then  to  hold  tlie  other  party  to  the  observ- 
ance of  its  conditions  as  if  it  were  a  subsistinj^  engagement.  It  is 
contrary  to  every  principle  of  natural  justice  that  one  party  to  a  con- 
tract may  pass  judgment  upon  the  other;  and  this  is  no  less  true  when 
the  former  is  a  government  and  the  latter  is  a  foreign  citizen.  Public 
law  regards  the  parties  to  a  contract  as  of  equal  dignity,  equally  enti- 
tled to  the  hearing  and  judgment  of  an  impartial  and  disinterested 
tribunal.  '"The  acts  of  a  sovereign,"  says  Mr.  Wheaton,  a  very  high 
authority,  "however  binding  upon  his  own  subjects,  if  they  are  not 
conformable  to  the  public  law  of  the  world,  can  not  be  considered  as 
binding  upon  the  subjects  of  other  states.  A  wrong  done  to  them 
forms  an  equally  just  ground  of  complaint  on  the  part  of  their  govern- 
ment, whether  it  proceed  from  the  direct  agency  of  the  sovereign  or  is 
inflicted  by  the  instrumentality  of  his  tribunals."  (Wharton's  Int. 
Law  Dig.,  sec.  242.) 

It  is  undou})tedly  true  that  citizens  or  subjects  of  one  country  who 
go  to  a  foreign  country  and  enter  into  contracts  with  its  citizens  are 
presumed  to  make  their  engagements  in  accordance  with  and  subject  to 
the  laws  of  the  country  Avhere  the  obligations  of  the  contract  are  to  be 
fulfilled,  and  ordinarily  can  have  recourse  to  their  own  government 
for  redress  of  grievances  only  in  case  of  a  denial  of  justice.  But,  as 
was  forcibly  stated  by  Mr.  Cass,  Secretary  of  State  of  the  United 
States — 

The  case  is  widely  different  when  the  foreign  government  becomes  itself  a  party  to 
important  contracts,  and  then  not  only  fails  to  fulfill  them,  but  capriciously  annuls 
them,  to  the  great  losa  of  those  who  have  invested  their  time,  labor,  and  capital  in 
their  reliance  upon  its  good  faith  and  justice. 

It  is  just  such  a  "widely  different  case"  that  is  presented  here.  It 
is  just  such  a  case  that  is  within  the  terms  of  Article  I  of  the  protocol, 
defining  the  jurisdiction  of  this  Commission.  And,  in  my  judgment, 
the  Commission  can  not  refuse  to  take  cognizance  of  this  claim  with- 
out disregarding  its  solemn  oath  "carefully  to  examine  and  impartially 
to  decide  according  to  justice  and  the  provisions  of  said  convention 
all  claims  submitted  to  it  in  conformity  with  its  terms." 

Prima  facie,  the  memorial  presents  the  case  of  a  wrongful  annul- 
ment by  the  arbitrary  act  of  the  Venezuelan  Government  of  a  contract 
to  which  it  was  a  party,  injuriously  affecting-  the  rights  of  the  other 
part}^  thereto,  who  was  a  citizen  of  the  United  States.  Manifestlj^,  the 
first  part  of  article  12  of  the  contract  relates  solely  to  questions  grow- 
ing out  of  the  agreement  itself,  and  can  not  be  construed  to  apply  to 
.a  claim  resulting  from  the  capricious  annulment  of  the  agreement  by 
one  of  the  parties.  Such  a  claim  does  not  rest  upon  an}'  doubts  or  con- 
troversies arising  out  of  the  contract,  but  is  based  upon  the  fact  that 
the  claimants  have  been  deprived  of  valuable  rights,  moneys,  property, 
and  propert}'  rights  by  the  wrongful  act  of  the  Government  of  Vene- 
zuela, which  they  were  powerless  to  prevent  and  for  which  they  claim 
■compensation.  The  "doubts  and  controversies"  referred  to  in  article 
12  obviously  relate  to  questions  affecting  the  interpretation  of  the  con- 
tract, to  questions  whether  it  was  being  or  had  been  complied  with, 
and  the  like.  As  to  such  matters  the  parties,  by  that  article,  mutually 
agreed  to  have  recourse  to  the  local  tribunals.  But  when  the  Govern- 
ment, on  whatever  grounds  of  policy,  saw  fit  to  abrogate  the  contract 


REPOKT  OF  ROBERT  C.  MORRIS.  427 

itself,  and  then  to  appropriate  or  to  destro}^  the  property-  or  the  prop- 
erty rio-hts  of  the  claimants,  it  must  be  held  to  have  done  so  subject 
to  the  obligation  to  make  full  and  adequate  reparation,  and  in  full 
recognition  of  the  right  of  the  claimants,  as  citizens  of  the  United  States, 
to  seek  the  intervention  of  their  Government  for  their  protection. 

The  term  "property"  embraces  every  species  of  valualile  right  and  interest,  iiu'lud- 
ing  real  and  personal  property,  easements,  franchisements,  and  hereditaments. 

Property  is  divided  into  corporeal  and  incorporeal.  The  former  comprehends  such 
property  as  is  perceptible  to  the  senses,  as  lands,  houses,  goods,  merchandise,  and 
the  like;  the  latter  consists  of  legal  rights,  as  choses  in  action,  easements,  and  the 
like.     (Bouvier's  Law  Diet.,  Rawle's  ed.,  731.) 

The  law  of  Venezuela  recognizes  that  property  rights  may  rest  in 
contracts.     Article  691  of  the  Civil  Code  provides: 

La  propiedad  y  demas  derechos  se  adquieren  y  transmiten  por  sucesion,  por  dona- 
cion  y  por  efecto  de  los  contratos. 

The  taking  away  or  destruction  of  rights  acquired,  transmitted,  and 
defined  by  a  contract  is  as  much  a  wrong  entitling  the  sufferer  to 
redress  as  the  taking  away  or  destruction  of  tangible  property;  and 
such  an  act  committed  b}^  a  government  against  an  alien  resident 
gives,  by  established  rules  of  international  law,  the  government  to 
w^hich  the  alien  owes  allegiance,  and  which  in  return  owes  him  protec- 
tion, the  right  to  demand  and  to  receive  just  compensation.  Such  an 
act  constitutes  the  basis  of  a  "claim,"  clearly  within  the  meaning  and 
intent  of  the  convention  constituting  this  Commission. 

In  addition  to  the  foregoing  it  may  be  said  the  presence  of  article 
12  in  the  Rudlotf  contract  is  obviously  due  to  the  constitutional  and 
legislative  ijrovisions  requiring  it.  The  protocol,  which  is  the  funda- 
mental law  of  this  tribunal,  however,  provides  that — 

The  commissioners,  or  in  case  of  their  disagreement,  the  umpire,  shall  decide  all 
claims  upon  a  basis  of  absolute  equity,  without  regard  to  objections  of  a  technical 
nature  or  the  provisions  of  local  legislation. 

I  am  of  the  opinion  that  this  claim  is  within  the  jurisdiction  of  this 
Commission,  and  that  its  careful  examination  and  impartial  decision 
constitute  a  solemn  duty  which  the  Conmiission  can  not  with  pro- 
priety either  evade  or  ignore. 

The  United  States  and  Venzuelan  Claims  Conunission,  sitting  at 
Caracas,  Venezuela. 


The  United  States  of  America  ox  KEiiALr 
of  Sofia  Ida  Wiskow  de  Kudlofi'aiid  Frederick 
William  liudlofi',  claimants. 

The  Republic  of  Venezuela. 


-No.  41. 


Doctor  Paul,  ('(/inmissioner : 

The  honorable  agent  for  the  I'nited  States  vei-bally  presented  to  tliis 
Commission  a  mcunorial  signed  by  Sofia  Ida  AViskow  de  Kudlotl'  aiul 
Frederick  W.  Kudloff,  citizens  of  the  I'nited  Stales  and  heirs  of 
Henry  Frederick  liudlofi',  deceased,  in  which  memorial  said  iieirs  claim 
from  the  Republic  of  Venezuela  the  payment  of  the  sum  of  8,«)'.>8,S'>i 
bolivars  with  interest,  for  the  loss  of  capital  and  damages  caused  by 
the  abrogation  of  certain  contract  made  between  said  Henry  Frederick 


428  REPORT  OF  ROBERT  C.    MORRIS. 

Rudlotf  unci  the  niiiiistor  of  })ul)lic  works  and  the  mayor  of  the  Federal 
District,  puldislied  in  the  Ollicial  (iazette,  No.  5717,  of  Februarys, 
18!K>,  -which  t'ontract  had  for  its  olvject  the  construction  of  a  new 
market  buildino-  in  the  San  rJacinto  square,  this  city. 

The  honorable  ao-ent  for  Venezuela,  in  his  replj^  to  the  above-men- 
tioned memorial,  presented  to  this  Commission,  as  a  previous  and 
special  question  to  be  decided,  the  exception  against  jurisdiction  based 
on  the  followino-  reasons: 

That  on  ISIay  8,  1901,  the  same  claimants,  represented  b}'  Dr.  Asca- 
ni<:>  Xeo-retti,  sued  the  Venezuelan  Government  before  the  federal  court 
for  the  payment  of  the  same  amount  and  on  the  same  basis  that  they 
now  present  to  this  Commission. 

Thot  the  claimants  having  chosen  the  jurisdiction  of  the  federal 
court  and  submitted  themselves  to  its  decision,  it  is  evident  that  they 
also  accepted  the  dominion  of  the  local  legislation,  substantive  as  well 
as  adjective,  in  connection  with  the  action  brought  by  them  against 
the  Government  of  Venezuela,  with  the  special  circumstance  that,  by 
article  12  of  the  contract  presented  as  evidence  by  the  claimant,  the 
contracting  party  agreed  that  "all  doubts  and  disputes  arising  by 
reason  of  said  contract  should  be  decided  V)y  the  tribunals  of  the 
Republic  and  said  disputes  could  never  give  reason  for  international 
reclamations." 

That  the  hall  of  the  first  instance  of  the  federal  court  having  taken 
cognizance  of  and  decided  the  said  action  and  both  parties  having 
appealed  from  its  decision,  the  same  federal  court  in  its  hall  of  the 
second  instance,  has  this  matter  under  its  judicial  notice  at  the  present 
time;  and  Venezuela — that  is  to  say,  the  defendant  party — not  having 
consented  to  the  withdrawal  of  the  suit  from  the  jurisdiction  of  that 
high  tribvmal,  in  order  to  have  it  submitted  to  this  Commission,  the 
latter  consequent!}'  lacks  jurisdiction;  and  finally,  that  the  case  of 
denial  of  justice  could  not  be  alleged,  since  not  only  has  the  court  of 
the  second  instance  not  yet  given  a  judgment  that  could  cause  definite 
execution  in  the  case,  but  the  decision  i-endered  by  the  first  instance 
of  the  federal  court  was  favorable  to  the  claimants. 

The  question  of  jurisdiction  in  this  case  evidently  is  a  matter  of 
interpretation  of  the  terms  of  the  first  article  of  the  protocol,  dated 
February  17,  1903,  signed  at  Washington  bv  the  Secretary  of  State  of 
the  United  States  of  America  and  the  plenij^otentiaiy  of  Venezuela, 
that  had  for  its  object  to  submit  to  arbitration  all  the  claims,  not 
settled,  owned  by  citizens  of  the  United  States  against  the  Republic 
of  Venezuela. 

The  exact  terms  of  said  article  are  as  follows: 

All  claims  owned  by  citizens  of  the  United  States  of  America  against  the  Repul)lie 
of  Venezuela  which  have  not  been  settled  by  diplomatic- agreement  or  by  arbitration 
between  the  two  Governments  and  which  shall  have  been  presented  to  the  Commis- 
sion hereinafter  named,  by  the  Department  of  State  or  its  legation  at  Caracas,  shall 
Vje  examined  and  decided  by  a  mixed  commission  which  shall  sit  at  Caracas,  etc. 

The  general  terms  in  which  this  article  defines  the  jurisdiction  of 
this  tril>iuial  are  apt  to  be  interpretative  in  such  a  way  that  the  scope 
of  the  faculty  intended  to  be  given  to  the  Commission  comprised  all 
claims  owned  by  citizens  of  the  United  States  against  the  Republic  of 
Venezuela  that  had  been  the  object  of  diplomatic  correspondence 
between  the  two  Governments  without  having  reached  a  final  settle- 
ment, or  that  were  unknown  to  both  Governments;  but  this  amplitude 


REPOKT  OF  ROBERT  C.  MORRIS.  429 

of  jurisdictional  scope  does  not  in  an}-  way  interfere  witli  tiie  principles 
of  common  law  and  sane  logic,  which  naturally  exclude,  because  of 
nature  and  peculiar  circumstances,  certain  questions  or  pretensions  of 
those  parties  that  consider  themselves  entitled  to  claim  from  the 
Republic  of  Venezuela,  from  being  presented,  examined,  or  decided  by 
this  Commission.  For  instance,  the  above-mentioned  article  does  cate- 
gorically state  that  those  questions  or  claims  of  citizens  of  the  Ignited 
States  against  the  Republic  of  Venezuela  that  had  already  been  sub- 
mitted to  the  ordinar}'  tribuilals  of  the  country  and  had  been  the  o])ject 
of  definite  executor}-  judgment,  and  against  which  there  has  not  been 
invoked,  as  a  basis  for  a  new  and  diii'erent  claim,  a  denial  of  justice  or 
evident  injustice,  w-ere  excluded  from  the  jurisdiction  of  this  Com- 
mission, and  notwithstanding  that  these  claims  could  not  l)e  con- 
sidered as  settled  by  dijjloviatic  agreement  err  hy  arhitration  hetween 
hoth  Govtrnme7its^  it  is  an  indisputable  fact  that  such  questions  or 
pretensions  do  not  constitute  a  claim  susceptible  of  submission  to  the 
examination  and  decision  of  this  Commission. 

In  the  meaning  of  the  w-ord  "claim"  it  is  indispensable  to  admit  as 
a  consubstantial  element  the  idea  of  controversy  between  the  Govern- 
ment of  Venezuela  and  the  claimant.  That  controversy,  as  in  the  jn-es- 
ent  case,  arises  from  a  contract  and  has  been  submitted  for  its  detinite 
decision  to  the  jurisdiction  of  a  tribunal  of  the  Republic,  which. 
according  to  the  laws  of  the  country  and  by  the  special  articles  of  the 
same  contract,  has  full  jurisdiction  to  decide  whether  or  not  there  exist 
responsibilities  and  obligations  in  favor  of  either  party;  and  the  stage 
of  the  proceedings  of  the  action  in  that  case  determines  that  it  is  not  a 
claim  of  a  government  against  another  government  to  obtain  satisfac- 
tion for  damages  caused  to  the  interests  of  one  of  its  citizens,  ])ut  it 
enters  upon  that  condition  of  every  question  which  is  the  object  of  a 
civil  action,  in  which  concur  all  the  elements  and  means  accorded 
by  the  laws  for  the  dilucidation  and  protection  of  the  rights  of  both 
parties. 

The  Washington  protocol  could  not  have  for  its  object  the  \\  itii- 
drawal  from  the  decision  of  the  tribunals  of  the  Republic  the  judii-ial 
disputes  that  had  l)een  already  sul)mittc(l  to  them,  when  it  is  natural 
to  suppose  that  it  had  no  other  object  than  to  facilitate,  by  means  of 
the  Mixed  Commission,  the  dehnitive  decision  of  those  claims  that 
had  been  already  o])je('t  of  diplomatic  dissension  between  thetwoCrov- 
ernments  and  a))out  which  a  settlement  had  not  been  reached  by  agree- 
ment or  arbitration.  The  act  of  making  nugatory  the  laws  of  the 
Republic  which  are  a  part  of  its  constitutional  statute  in  regard  to 
contracts  and  in  regard  to  the  jurisdiction  of  its  tribunals,  thus  oppos- 
ing the  terms  of  the  express  contractual  conditions  that  ol)lige  the 
pa*i-ties  tosul)mitall  questions  arising  fi-om  said  contract  to  (he  courts 
of  the  countrv,  without  same  ever  becoming  a  cause  for  intiM-national 
claims,  wouhlhave  been  a  transgression  on  the  legitimate  j^wers  with 
which  the  plenipotentiary  of  Venezuela  was  invested,  which  i)o\vers 
could  never  have  made  ineft'cctual  the  constitutional  precepts  rstab- 
lished  in  the  fundamental  charter  of  1001,  that  was  in  force  at  the  date 
of  the  signing  of  the  protocol.  It  is  not,  then,  possible  to  admit  an 
interpretation  of  the  terms  of  said  ])rotocol  that  is  not  in  periect 
accordance  with  the  fundamental  basis  oF  the  national  soveivignty 
exercised  through  its  tribunals  oF  justice  and  in  accordance  with  the 
universal  principles  that  establish  as  supreme  law  to  the  parties  in 


430  EEPORT  0¥    ROBERT  0.  MORRIS. 

contracts  and  oblio-jitions  the  judicial  ties  established  b}'  themselves  in 
the  exercise  of  their  free  will  and  as  a  law  to  the  contract. 

It  was  in  the  exercise  of  tiiis  libert}^;  it  was  in  the  observance  of  the 
laws  of  the  Kepublic,  that  were  known  to  Sotia  I.  W.  de  lludloti'  and 
Frederick  Henr}-  Riidlotf,  which  laws  they  were  obliged  to  comply 
with,  as  well  as  to  the  very  special  clause  13  of  the  said  contract,  on 
which  they  found  their  clann;  and  it  was  also  in  view  thereof  that  the 
Department  of  State  of  the  United  States  of  America,  who,  under  its 
constant  rule  of  nonintervention  in  disputes  arising  from  contracts 
between  its  citizens  and  foreign  countries,  until  after  having  availed 
themselves  of  all  the  remedies  which  the  laws  of  such  country  afforded 
for  the  protection  of  their  rights,  instructed  the  claimants  to  make 
use  of  their  rights  before  the  tribunals  of  Venezuela^  and  in  accord- 
ance with  those  instructions  said  claimants  presented  to  the  federal 
court  their  demand  for  damages  against  the  Government  of  Venezuela. 
"While  this  action  exists,  and  while  all  the  remedies  afforded  by  our 
laws  in  their  various  instances  are  not  exhausted,  and  while  there  is 
not  used  as  a  basis  of  a  claim  the  fact  of  denial  of  justice  or  evident 
injustice  in  the  judicial  proceedings  and  in  the  final  judgment  of  the 
federal  court,  there  does  not  exist  any  claim  with  reference  to  this 
matter  that  could  be  a  subject  for  examination  by  this  Commission. 

It  is  true  that  the  parties  have  the  right,  by  article  No.  216  of  the 
code  of  civil  proceedings,  to  desist  from  any  action  brought  before  a 
tribunal.  The  same  article  establishes  that  such  desistance  can  not  take 
place  without  the  consent  of  the  other  party;  and  article  492  of  the 
same  code,  quoted  by  the  honorable  agent  for  the  United  States  in 
his  reply,  stipulates  that  when  at  any  stage  of  the  case  the  parties 
manifest  that  they  have  submitted  themselves  to  the  decision  of 
umpires,  the  course  of  the  action  be  suspended  and  the  pleadings  uiid 
proceedings  be  inmiediately  delivered  to  the  umpires,  it  reveals  by  its 
own  terms  that  such  a  statement  should  be  made  explicit,  and  by  both 
parties,  before  the  tribunal  where  the  action  was  pending,  and  by  no 
means  could  such  a  manifestation  be  deducted  from  the  more  or  less 
exact  interpretation  of  the  terms  of  the  protocol.  When  the  protocol 
was  signed  at  Washington  the  said  action  was  pending  before  the 
federaf  court,  and  had  it  been  the  intention  of  the  Government  of 
Venezuela,  notwithstanding  the  conditions  stated  in  the  constitution 
of  the  Republic  and  the  clause  of  the  contract  which  is  the  cause  lof  the 
demand,  and  the  natural  jurisdiction  of  a  high  court  of  the  Repu]>lic 
in  the  action  brought  by  the  same  plaintiffs,  such  an  exception  would 
have  to  have  been  the  ol)ject  of  an  especial  statement  in  the  terms  of 
the  protocol,  as  happened  in  the  Venezuelan- Mexican  protocol  signed 
by  the  same  plenipotentiary  of  Venezuela,  Mr.  Bowen,  on  the  26th 
day  of  the  same  month  of  February. 

Said  Venezuelan-Mexican  protocol  expressly  states: 

It  is  understood  and  agreed  that  if  before  the  1st  of  June,  190.3,  the  Mexican 
claims  above  mentioned  are  arranged  by  agreement  between  the  claimants  and  the 
Government  of  Venezuela,  or  decided  in  favor  of  said  claimants  by  the  high  federal 
court  of  \'enezuela,  the  same  claims  shall  not  be  submitted  to  the  arbitration  pro- 
vided for  in  the  preceding  articles. 

This  exception  was  caused  by  the  circumstances  that  the  representa- 
tives of  the  high  contracting  parties  knew  of  the  existence  of  the 
demand  ^entered  in  action  by  the  firm  of  Martinez  del  Rio  &  Bros, 
before  the  high  federal  court,  and  both  representatives  thought  it 


REPORT  OP  ROBERT  C.  MORRIS.  431 

indispensable  to  specify  a  date  and  a  condition  that  would  contribute 
to  fixing  the  jurisdiction  of  the  Mixed  Commission  in  the  special  case 
of  the  above-mentioned  claim,  it  being  in  limine  litis  submitted  for  its 
decision  to  a  court  that  fully  exercised  that  jurisdiction,  and  which  the 
parties  could  not  avoid  without  an  especial,  express,  and  definite 
declaration. 

For  the  above-stated  reasons  it  is  my  opinion  that  while  there  exists 
a  demand  in  action  brought  by  the  same  claimant  before  the  federal 
court  for  the  same  object  mentioned  in  the  memorial  presented  to  this 
Commission,  which  judgment  is  still  pending  by  reason  of  an  appeal 
made  by  both  parties  to  the  hall  of  the  second  instance  of  the  same 
court  from  the  decision  pronounced  by  the  hall  of  the  first  instance, 
there  does  not  properly  exist  a  claim  against  the  Government  of  Vene- 
zuela which  could  be  submitted  to  the  jurisdiction  of  this  Commission 
by  the  Rudlotf  heirs,  and  consequently  this  Commission  has  absolutely 
no  jurisdiction  and  ought  to  reject  the  pretension  of  the  applicants. 

The   United   States   and  Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  on  behalf] 
of  Sofia  Ida  Wiskow  de  Rudlotf  and  Frede-  I 
rick  William  Rudlotf,  claimants,  }-  Claim  No.  41. 

V.  1 

The  Republic  of  Venezuela.      J 

INTERIiOCUTORY  DECISION  ON  JTJIIISDICTION. 

The  Umpire: 

A  ditference  of  opinion  having  arisen  between  the  Commissioners  of 
the  United  States  of  North  America  and  of  the  United  States  of  Vene- 
zuela about  the  question  of  jurisdiction  in  this  case,  this  question  was 
duly  referred  to  the  umpire  for  an  interlocutory  decision. 

The  umpire,  having  fully  taken  into  consideration  the  protocol,  and 
also  the  opinions  and  arguments  of  the  Commissioners  as  well  as  the 
documents,  evidence,  and  arguments,  and  likewise  all  the  connnmiica- 
tions  made  by  the  two  parties,  and  having  imi)artially  and  cari'fidly 
examined  the  same,  has  arrived  at  the  following  decision: 

Whereas  the  protocol,  whereupon  solely  and  wholly  rests  the  juris- 
diction of  this  Commission,  says  that  all  claims  owned  by  citizens  of 
the  United  States  of  North  America  against  the  Republic  of  Venezuela 
which  have  not  been  settled  by  diplomati'.;  agreement  or  by  art)il  ration 
between  the  two  (lovernments,  and  which  shall  ha\-e  been  presented  to 
this  Commission  by  the  Department  of  State  of  tll(^  I'nited  Stales  or 
its  legation  at  Caracas  shall  be  examined  and  decided  by  this  Commi.s- 
sion;  and  ,  . 

Whereas  claimants  in  the  first  place  are  citizens  ot  the  I  micd 
States,  and  secondly,  own  a  claim  against  the  Republic  of  Venezuela, 
which  claim  has  not  been  settled  by  diplomatic  agreement  or  by  arbi- 
tration between  the  two  (iovernments,  while,  in  the  third  place,  it  has 
been  duly  presented  to  this  C(muuission  by  the  Department  of  State  ol 
the  United  States  through  its  agent,  this  claim  certainly  prinin  incu^ 
shows  itself  as  standing  under  the  jurisdiction  of  this  Commi.vion- 


432  REPORT  OF  ROBERT  C.  MORRIS. 

^Jow,  Avboreas  the  (lovorninontof  Venezuela,  by  its  honorable  agent, 
opposes  that  in  article  I'i  of  the  contract  entered  into  by  the  prede- 
cessor in  interest  of  the  claimants  the  parties  stipulated  that  the  doubts 
and  controversies  which  nilglit  arise  by  reason  of  it  should  be  decided 
by  the  tribunals  of  the  Republic,  it  has  to  ])e  considered  that  this  stip- 
ulation l)v  itself  does  not  withdraw  the  claims  based  on  this  contract 
from  the  jurisdiction  of  this  Connnission,  because  it  does  not  deprive 
it  of  any  of  the  essential  qualities  that  constitute  the  character  which 
gives  the  right  to  appeal  to  this  Connnission;  but  that  in  such  cases  it 
has  to  be  investigated  as  to  axery  claim,  whether  by  the  fact  of  not 
fultilling  this  condition  and  of  claiming  in  another  waj^  without  first 
going  to  the  tribunals  of  the  Repu])lic,  does  not  inflict  the  claim  with  a 
vitium  proprium,  in  consequence  of  which  the  absolute  equity  (which 
according  to  the  protocol  has  to  be  the  only  basis  of  the  decisions  of 
this  Commission)  prohibits  this  Commission  from  giving  the  benefit  of 
its  jurisdiction  (for  as  such  it  is  regarded  b}^  the  claimants)  to  a  claim 
based  on  a  contract  l)}^  Avhich  this  benefit  was  renounced,  and  thus 
absolving  claimants  from  their  obligations,  while  the  enforcing  of  the 
obligations  of  the  other  party  based  on  that  same  contract  is  precisely 
the  aim  of  their  claim;  and 

Whereas  the  existence  of  such  a  vitium  proprium  can  only  be  the 
result  of  an  examination  of  the  claim  in  its  details,  the  jurisdiction  of 
the  Commission  as  to  the  examination  of  the  case  is  not  impeached  by 
the  above-mentioned  clause,  leaving  open  for  the  decision  of  the  Com- 
mission the  question  whether  this  clause,  under  circumstances  sufli- 
ciently  evidenced  after  investigation,  forbids  the  Commission  in  abso- 
lute equity  to  give  claimants  the  benefit  of  this  jurisdiction  as  to  the 
decision;  wherefore,  this  argument  does  not  seem  conclusive  against 
the  jurisdiction  of  this  Commission. 

Whereas,  furthermore,  the  Government  of  Venezuela,  b}^  its  honor- 
able agent,  opposes  that  this  same  claim,  being  already  the  object  of 
a  suit  before  the  federal  court,  it  can  not,  in  accordance  with  article 
216  of  the  code  of  civil  procedure,  be  withdrawn  from  the  jurisdic- 
tion of  that  court  without  the  consent  of  the  opposite  party,  which 
consent  is  here  failing,  it  has  to  be  considered  that 

Whereas,  even  admitting  the  facts  as  stated  by  the  Government  of 
Venezuela,  this  argument  does  not  seem  to  go  against  the  provisions 
of  the  protocol,  which  states  that  the  Commission  shall  decide  all 
claims  without  regard  to  the  provisions  of  local  legislation,  and  which, 
at  all  events,  does  not  except  claims  in  litigation  when  it  speaks  about 
"all  claims  owned  by  citizens,  etc."  While  it  should  be  borne  in  mind 
that  this  i:)rotocol  is  the  fundamental  law  for  this  Commission,  and  the 
only  source  of  its  jurisdiction,  and  in  which  way  soever  the  provisions 
of  the  protocol  might  be  discussed,  in  view  of  the  principles  of  right — 
international  as  well  as  right  in  general — the  adage  should  not  be  for- 
gotten, "dura  lex  sed  lex,"  and  it  must  be  remembered  that  this 
protocol,  under  which  circumstances  soever  originated,  is  an  agree- 
ment between  two  parties,  and  that  the  Commission  whose  whole 
jurisdiction  is  only  founded  on  this  agreement  has  certainly,  above  all, 
to  apply  the  great  rule,  "pacta  servanda"  without  which  interna- 
tional as  well  as  civil  law  would  be  a  mere  mockery;  while,  on  the 
other  hand,  it  has  not  to  be  forgotten  that  this  Commission  in  the 
practice  of  its  judicial  powers  may  find  that  the  absolute  equity  which, 
according  to   that   same   protocol  has   to  be  the  only  basis  for  its 


REPORT  OF  ROBERT  C.  MORRIS.  433 

decision,  forces  it  to  take  into  consideration  whether  conflict  with 
the  provisions  of  local  legislation,  as  well  as  with  previous  agreements 
between  parties,  may  inflict  the  claim  with  that  vitium  proprium,  in 
consequence  of  which  that  same  absolute  equity  prevents  the  Com- 
mission from  making-  use  of  the  jurisdiction  as  to  the  decision. 

Whereas,  therefore,  the  arguments  opposed  do  not  seem  to  impeach 
the  prima  facie  arguments  that  speak  for  the  jurisdiction  of  the  Com- 
mission under  the  protocol,  this  jurisdiction  has  to  be  maintained, 
and  the  claim  has  to  be  submitted  to  it. 

The   United    States   and  Venezuelan  Claims   Commission   sitting  at 

Caracas,  Venezuela. 

The  United  States  of  America  ox  behalf  of  "] 
Sofia  Ida  W'iskow  de  Rudlofl'  and  Frederick  W.  I 
Rudlofi',  claimants,  ['So.  il. 

V.  I 

The  Republic  of  Venezuela.  J 

Bainbridge,  Commissioner: 

On  the  1st  day  of  Febiniary,  1893,  a  contract  was  entered  into  by 
and  between  the  minister  of  public  works  and  the  governor  of  the  Fed- 
eral District,  sufliciently  authorized  thereto  by  the  Chief  of  the  Execu- 
tive Power,  parties  of  the  first  part,  and  Henry  F.  Rudloff,  civil 
engineer,  a  citizen  of  the  United  States  of  America,  residing  in  Car- 
acas, party  of  the  second  part,  whereby: 

Rudloft'  agreed  to  construct  for  his  own  account  or  through  a  com- 
pany, either  national  or  foreign,  a  building  of  iron  and  masonry, 
principally  for  a  public  market,  on  the  place  where  then  stood  the 
market  of  "San  Jacinto,''  including  the  park  '*E1  Venezolano,"  and 
the  grounds  and  buildings  annexed  to  said  market.  He  was  to  con- 
struct the  building  for  the  market  according  to  the  plans  presented  bv 
him  to  the  minister  of  public  works;  he  was  to  commence  the  work  of 
construction  eleven  days  after  the  signing  of  the  contract,  and  to 
finish  the  work  within  two  years;  he  was  granted  the  buildings  and 
grounds  above  referred  to;  he  was  to  take  exclusive  charge  of  the 
management  and  collecting  of  the  proceeds  of  the  market,  and  the 
policing  of  the  same  from  the  day  on  which  he  commenced  the  work. 
The  duration  of  the  contract  was  to  be  eighteen  years. 

Rudlott'  agreed  to  pay  to  the  municipality  of  Caracas  the  following 
sums:  From  the  first  to  the  fourth  year,  75,0(M>  bolivars  per  year,  or 
for  the  four  years  300,000  bolivars:  and  from  the  fifth  to  the  eighteenth 
year  li20,000  bolivars  per  year,  or  for  the  period  of  fourteen  ,years 
the  sum  of  1,680,0(><»  bolivars,  a  total  for  the  eighteen  years  of 
1,98(»,(»<)0  bolivars.  Rudloft'  agreed  to  pay  these  sums  to  the  munici- 
pality in  daily  payments  of  20.5  bolivars  and  50  centimos;  he  agreed 
to  offer  yearly  at'pu))lic  auction  the  localities  of  the  market,  and  the 
buildings  with  all  its  fixtures  and  utensils  was  to  belong  to  the  munici- 
pality, without  the  necessit}-  of  any  legal  transfer  upon  the  expiration  of 
the  eighteen  years;  free  entry  through  the  custom-house  at  LaGuaira 
was  granted  for  all  the  materials,  fixtures,  and  tools  necessary  for  the 
construction  of  th(?  market,  and  free  use  of  water  for  the  construction 
and  for  the  use  of  the  building;  the  entei-prise  was  not  to  be  subject 

S.  Doc.  317,  58-2 28 


,434  REPORT  OF  ROBERT  C.  MORRIS. 

to  any  kind  of  taxes,  ordinary  or  extraordinary,  b}^  whatever  terms 
they  may  be  denominated,  durino-  the  term  of  the  contract,  and  neither 
the  National  Government  nor  the  municipality  was  to  construct  or 
allow  to  be  constructed  any  other  public  market  in  Caracas.  Article 
12  of  the  contract  provided  that  the  doubts  or  controversies  that  may 
arise  on  account  of  the  contract  shall  be  decided  by  the  competent 
tribunals  of  the  Repul)lic,  in  conformity  with  the  laws,  and  shall  not 
give  reason  for  any  international  reclamation. 

The  foreg-oing-  contract  was  published  in  the  Official  Gazette,  No. 
5717,  dated  February  8,  1808. 

On  February  11,  1893,  pursuant  to  the  contract,  the  market  of 
''San  Jacinto,"  and  the  grounds  and  buildings  appertaining  thereto, 
were  ceded  and  delivered  to  Rudloti'  by  public  functionaries  thereunto 
authorized,  and  the  work  of  construction  of  the  new  building-  was 
begun. 

The  evidence  shows  that  on  April  30,  1893,  the  governor  of  the 
Federal  District  entered  Rudloff's  office,  took  possession  of  his  books 
and  made  an  examination  of  them,  contrary  to  the  provisions  of  the 
constitution  and  laws  of  Venezuela.  Against  this  unlawful  act  Rud- 
loif  protested  to  the  minister  of  the  interior  on  the  following  day. 

The  fifth  article  of  the  contract  provided  that  Rudloff  should  take 
exclusive  charge  of  the  market  and  the  policing  of  the  same  from  the 
day  on  wdiich  he  commenced  work.  Trouble  arose  with  reference  to 
this  provision  of  the  contract  almost  immediately,  Rudloff  contending 
that  it  meant  simply  that  he  was  to  see  that  the  market  was  kept  clean 
and  in  a  sanitary  condition,  the  municipality  that  Rudloff  was  to  pay 
the  salarj^  and  rations  of  the  police  guards  detailed  in  the  market. 
This  controversy  was  finally  referred  to  the  Executive,  who  decided 
that  Rudloff  must  pay,  which,  under  protest,  he  did;  whereupon  the 
force  of  policemen  at  Ihe  market  was  largely  increased. 

On  July  15  the  governor  of  the  Federal  District  personally  ordered 
the  workmen  engaged  upon  the  building  to  suspend  the  work,  threat- 
ening with  arrest  anyone  who  dared  to  continue.  Through  his  repre- 
sentative, Mr.  Rudloff  immediately  protested  to  the  minister  of  public 
works  against  the  governor's  action. 

On  September'  9  the  governor  informed  Mr.  Rudloff  that  the 
municipal  council  at  its  last  meeting  had  declared  void  the  contract  for 
the  market,  and  that  he  would  take  possession  the  next  day,  as  in  fact 
he  did  take  possession  by  armed  force  on  September  10,  1893.  _  The 
work  which  had  been  done  by  Rudloff  was  subsequently  demolished. 

On  September  26,  1893,  Rudloff  addressed  himself  to  the  Govern- 
ment of  the  United  States,  through  the  Department  of  State,  and  pre- 
sented his  claim  against  the  Government  of  Venezuela.  In  its  reply, 
dated  December  22,  1893,  through  the  United  States  minister  at 
Caracas,  the  Department  of  State  was  of  the  opinion  that  the  action  of 
the  Venezuelan  authorities  was  arbitrary  and  unjust;  but  the  claimant 
was  advised  that  before  he  could  invoke  the  official  intervention  of  the 
United  States  it  should  be  made  to  appear  that  he  had  sought  redress 
in  the  courts  of  Venezuela  and  tlmt  justice  had  been  there  denied  him. 

On  May  8,  1901,  the  claimants,  as  successors  in  interest  to  Henry 
Rudloff,  began  suit  against  the  Government  of  Venezuela  in  the 
chamber  of  first  instance  of  the  federal  court.  A  decision  was  rendered 
on  the  14th  of  February,  1903,  favorable  to  the  claimants,  so  far  as  the 
existence  and  validity  of  the  contract  and  the  liability  of  the  Govern- 


KEPORT  OF  ROBERT  C.  MORRIS.  435 

ment  were  concerned,  but  holding  that  the  amount  to  he  adjudged 
should  be  determined  by  the  just  estimate  of  experts,  pursuant  to  the 
provision  of  the  civil  code.  An  appeal  was  taken  from  this  decision 
bv  the  parties  litigant  on  the  16th  of  February',  1903. 

'In  consequence  of  the  protocol  signed  at  Washington  on  February 
17,  1903,  for  the  submission  to  arbitration  of  all  unsettled  claims  owned 
by  citizens  of  the  ITnited  States  against  the  Hepublic  of  Venezuela,  the 
claimants  have  presented  their  claim  to  this  Commission.  _ 

Before  proceeding  to  answer  the  claim  upon  its  merits  here,  the 
learned  counsel  for  Venezuela  entered  a  plea  to  the  jurisdiction  of  the 
Commission  upon  the  following  grounds: 

First.  That  the  action  was  still  pending  in  the  tribunals  of  the 
Republic. 

Second.  That  article  12  of  the  contract  stipulates  that  the  doubts 
and  controversies  which  might  arise  by  reason  of  it  should  be  decided 
by  the  local  courts,  and  that  the  contract  could  never  give  rise  to  an 
international  reclamation. 

A  difference  of  opinion  existing  between  the  Commissioners,  the 
question  of  jurisdiction  was  duly  submitted  to  the  umpire,  who.  in  an 
interlocutory  decision,  sustained  the  jurisdiction  of  the  Commission  to 
examine  the  claim. 

Answering  to  the  merits,  the  honorable  agent  for  Venezuela  denies 
the  claim  in  all  its  parts  for  the  following  reasons: 

First.  Because  the  nation  was  not  a  party  to  the  contract  entered 
into  bv  the  predecessor  in  interest  of  the  claimants. 

Second.  Because  the  acts  which,  they  say,  were  committed  in  viola- 
lation  of  such  contract  were  done  by  municipal  authorities. 

Third.  Because  in  federal  republics  municipalities  are  autonomous 
entities  and  juridical  personalities,  capable  of  contracting  rights  and 
obligations,  and  for  whose  acts,  in  the  matter  of  contracts,  the  State 
can  not  be  responsible. 

Fourth.  Because  the  damages  claimed  are,  in  the  greater  part, 
remote,  unascertained,  and  indirect  damages,  for  the  recovery  of 
which  the  civil  law  gives  no  right. 

Fifth.  Because  the  contractor  violated  the  contract  made  with  the 
municipality  in  the  tirst  place,  disposing  during  the  time  when  he  was 
in  charge  of  the  market  of  the  whole  of  its  rents. 

The  objection  that  the  National  Government  was  not  a  party  to  the 
contract  can  hardlv  be  sustained,  in  view  of  the  fact  that  the  contract 
itself  shows  that  it  was  entered  into  by  the  minister  of  public  works 
and  the  governor  of  the  Federal  District,  sufficiently  authorized  by  the 
Chief  of  the  Executive  Power.  It  is  indeed  contended  that  the  extent 
of  the  national  interest  consisted  in  the  cession  of  certain  (lovernment 
lands  to  the  contractor  liudloff;  but  the  general  tenor  of  the  agreement 
indicates  the  active  participation  of  the  P^xecutive  authority  therein, 
granting  the  right  of  free  entry  of  all  materials  and  tools  through  the 
federal  custom-house  of  La  (iuaira  and  t\w  guarantee  that  neither  the 
National  Government  nor  the  municipality  would  allow  any  other  mar- 
ket to  be  constructed  in  Caracas. 

It  would  seem  that  a  sufficient  answer  to  the  first,  as  well  as  to  t\ie 
second  and  third  objections  raised  by  the  Government  of  Venezuela, 
lies  in  the  fact  that  the  Federal  District  was  not  at  the  time  of  this  con- 
tract an  autonomous  entity,  but  rather  a  political  subdivision  of  the 
State  directly  subject  to  the  Executive  authority.     The  decision  of 


436  REPORT  OF  ROBERT  0.  MORRIS. 

the  chamber  of  tirst  instance  of  the  federal  court  is  of  course  not  con- 
clusive upon  tiie  C'onunission,  but  upon  this  (;[uestion  of  fact  it  may  be 
cited  as  authoritative.  The  court  says:  ""With  reference  to  the 
authority  which  the  Chief  of  the  Executive  Power  of  the  nation  had 
to  enter  by  himself  into  the  contract  with  Rudlolf,  it  is  unquestionable 
that  it  was  sufficient,  through  the  ample  powers  which  it  exercised  by 
virtue  of  the  triumph  of  tjie  revolution  of  18'.>2,  of  which  Gen.  Joaquin 
Crespo  was  the  chief,  so  that  in  signing  the  contract  by  the  minister 
of  public  works  and  the  governor  of  the  Federal  District,  these  func- 
tionaries were  the  simple  agents  of  the  Chief  of  the  Republic  who  was 
at  the  same  time,  according  to  the  federal  sj'stem,  the  superior  chief 
of  the  Federal  District,''  and  further,  "that  at  the  date  of  the  sign- 
ing of  the  contract  the  Federal  District  had  no  autonomy,  the  func- 
tions thereof  being  tilled  by  the  Chief  of  the  Republic,  who,  by  appoint- 
ing discretionally  the  ministers,  the  governor  of  the  Federal  District, 
and  the  members  of  the  executive  council,  made  all  these  functionaries 
dependent  on  his  authority,  and  therefore  without  any  power  to  con- 
trol his  acts.''  I 
In  view  of  the  foregoing  the  responsibility  of  the  National  Govern- 
ment for  the  acts  of  the  governor  of  the  Federal  District  and  of  the 
municipal  council  is  clear.  It  is  equally  clear  that  these  acts  were 
w^rongful,  arbitrary,  and  unjust.  If  any  consideration  of  public  policy 
required  the  abrogation  of  the  Rudlofl'  concession,  the  proper  judicial 

f)roceedings  should  have  been  taken  to  that  end,  and  in  conformity  with 
aw.  The  seizure  of  Rudloff's  books  and  correspondence,  the  impris- 
onment of  his  manager,  the  interference  with  his  workmen,  and  other 
hostile  acts  were  wholly  unjustifiable  and  lawless.  Moreover,  it  is  not 
apparent  b}'  what  right  the  National  Government,  acting  through  the 
governor  of  the  Federal  District,  could  annul  the  contract  with  Mr. 
Rudloti".  The  jurisprudence  of  civilized  states  and  the  principles  of 
natural  law  do  not  allow  one  part}^  to  a  contract  to  pass  judgment  upon 
the  other,  but  guarantee  to  both  the  hearing  and  decision  of  a  dis- 
interested and  impartial  tribunal.  These  encroachments  upon  the  legal 
rights  of  their  predecessor  in  interest  entitle  the  claimants  herein  to  a 
just  indemniiication. 

The  claim  is  summarized  as  follows: 

Bolivars. 

Estimated  income  from  rentals,  for  eighteen  years 8, 168,  500 

Amount  spent  in  construction  and  expense 78,  232 

.  Amount  paid  for  policemen' s  wages 8,  645 

Damages  to  credit 600,  000 

8,855,377 
Less  cost  of  building,  interest,  maintenance,  and  payment  of  municipal 

rents,  as  per  contract 5, 156,  576 

Total  damages 3,698,801 

The  amount  claimed  is  the  sum  of  3,698,801  bolivars,  equivalent  to 
the  sum  of  $711,307.90  in  United  States  gold. 

The  learned  counsel  for  Venezuela  contends,  not  without  reason, 
that  the  damages  thus  claimed  are,  in  their  greater  part,  remote,  unas- 
certained, and  indirect. 

The  contract  provided  that  Rudlotf  should  have  during  the  period 
of  eighteen  years  therein  designated  the  exclusive  management  and  the 
collection  of  the  proceeds  of  the  market,  and  that  he  was  to  offer 
yearly  at  public  auction  the  localities.     It  contained  no  agreement  for 


EEPORT  OB'  EGBERT  C.  MORRIS.  437" 

the  payment  to  him  by  the  Government  or  the  municipality  of  any  sum 
whatever.  The  adventure  was  on  his  part  wholly  speculative,  and  his 
income  therefrom  was  dependent  upon  the  sale  of  localities,  the  pay- 
ment of  the  rentals  by  the  lessees,  the  success  or  failure  of  his 
management,  and  other  indeterminate  contingencies.  Under  these 
circumstances  any  estimate  of  the  pecuniary  advantages  derivable  from 
the  contract  is  necessarily  conjectural.  Damages  to  be  recoverable 
must  be  shown  with  a  reasonable  degree  of  certainty,  and  can  not  be 
recovered  for  an  uncertain  loss.  All  that  the  claimants  pretend  to 
prove  here,  all,  indeed,  that  from  the  nature  of  the  case  it  is  possible 
for  them  to  prove,  is  that  their  predecessor  in  interest  might  have 
obtained  the  income  claimed  if  the  Governnlent  had  not  broken  the 
contract.  They  are  necessarily  unable  to  prove  with  reasonable  cer 
tainty  that  he  could  or  would  have  obtained  it.  The  case  presented 
here  is  not  that  of  the  loss  of  the  prospective  profits  of  an  established 
business;  nor  is  it  that  of  the  loss  of  the  ascertained  profits  derival^le 
from  a  contract  unperformed.  It  is  simply  that  of  the  loss  of  the 
expected  profits  of  a  business  venture  wrongfully  prevented  of  fulfill- 
ment by  the  defendant  Government;  and  for  these  expected  profits  the 
claimants  can  not  recover,  because  they  are  wholly  unable  to  show  that 
a  profit  would  have  been  made.  It  is  true  the  general  rule  of  damages 
for  the  deprivation  of  real  property  is  the  value  of  its  use — the  rental 
value.  But  it  has  been  held  by  respectable  authority  that  when  the 
defendant  destroj^ed  a  building  in  course  of  construction  by  the  plain- 
tiff, the  prospective  profits  which  the  plaintiff  might  have  made  by 
renting  the  building  are  not  recoverable.  (Bingham  v.  Walla  Walla, 
3  Wash.,  68.)  The  damages  claimed  in  this  item  are  speculative  and 
contingent,  and  can  not  form  the  basis  of  an  award. 

The  claim  for  *' loss  of  credit"  is  not  supported  by  sufiScient  evi- 
dence and,  indeed,  the  damages  alleged  in  that  respect,  as  involving 
the  intervention  of  the  will  of  the  other  parties,  are  too  remote  and 
consequential. 

But  it  h\  no  means  follows  from  the  foregoing  considerations  that 
tiiese  claimants  are  remediless.  The  evidence  is  perfectly  clear  that 
Rudloff'  possessed,  in  virtue  of  his  contract,  valuable  property  rights; 
that  he  entered  upon  the  performance  of  the  contract;  acted  in  all 
matters  relating  thereto  in  conformity  with  its  terms;  invested  upon 
the  faith  of  it  a  considei'able  amount  of  capital,  and  was  apparently 
ready  and  willing  to  comply  fully  with  its  obligations.  The  evidence  is 
also  clear  that  he  was  denied  the  protection  of  the  law,  was  ruthlessly 
interfered  with  and  harrassed,  and  finally,  without  a  hearing  or  judicial 
procedure  of  any  sort,  was  b}^  force  of  arms  deprived  of  his  property 
and  of  the  rights  vested  in  him  under  the  contract.  These  acts  of 
hostility  and  oppression  were  committed  by  the  constituted  authorities 
of  the  Government  and  evidently  in  the  execution  of  its  plans.  In 
the  commission  of  this  Avrong  against  an  alien  resident,  the  Govei'ii- 
ment  of  Venezu(^la  must  l)e  held  to  have  assumed  the  responsibility  of 
making  just  reparation;  and  for  the  wrong  thus  connnitted  against 
one  of  its  (dtizens.  the  Government  of  the  United  States,  on  belialf  of 
the  claimants,  is  entitled  to  an  award  justly  commensurate  with  the 
injuries  sustained. 


438  REPORT  OF  ROBERT  C.  MORRIS. 

The  United  States  tind  A^cneziielan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  or  America  on  behalf 
of  Sotia  Ida  "Wiskow  d(>  Rudlotf  and  Freder- 
ick William  Rudloti',  claimants,  j-No.  41. 

The  Republic  of  Venezuela.  j 

Doctor  Grisanti,  Commissioner: 

On  the  1st  of  February,  1893,  the  minister  of  public  works  and  the 
t^overnor  of  the  Federal  District  entered  into  a  contract,  sufficiently 
iiuthorized  therefor  by  the  Chief  of  the  Executive  Power  on  one  part, 
and  on  the  other  with  Henry  F.  Rudloff,  civil  engineer,  citizen  of 
the  United  States  of  America,  in  virtue  of  which  contract  Rudloff 
undertook — 

to  construct  on  his  own  account  or  through  a  company,  either  national  or  foreign,  a 
building  of  masonry  and  iron,  i)rincipally  for  a  pul)lic  market,  on  the  same  place 
which  is  at  present  occupied  by  the  market  calleil  San  Jacinto,  including  the  square 
called  El  Venezolano  and  the  grounds  and  buildings  adjoining  the  actual  market, 
the  properties  of  the  municipality  (or  the  Government),     (art.  1.) 

The  building  ought  to  have  been  constructed  according  to  the  three 
plans  which  the  contractor  had  already  presented  to  the  minister  of 
public  works,     (art.  2.) 

Rudloff  undertook  to  commence  the  construction  of  the  building 
eleven  days  after  signing  the  contract  and  to  finish  the  work  within 
the  following  two  years  of  the  same  date,  allowing  him  an  extension 
of  time  of  six  months,     (art.  3.) 

The  national  Government  and  the  citj^  of  Caracas  granted  to  the 
contractor  the  buildings  and  the  grounds  mentioned  in  article  1  for 
the  time  fixed  for  the  duration  of  the  contract,     (art.  4.) 

The  contractor  should  take  exclusive  charge  of  the  management  and 
collection  of  the  proceeds  of  the  market  and  management  of  the  police 
of  the  same  from  the  day  of  commencing  the  work.     (art.  5.) 

The  duration  of  the  contract  was  fixed  for  eighteen  years,  counting 
ten  da3^s  after  being  signed,     (art.  6.) 

The  contractor  Ijound  himself  to  pay  the  municipality  of  Caracas 
1,980,000  bolivars  during  the  eighteen  years  mentioned,  as  follows: 
From  the  first  to  the  fourth  5^ear,  inclusive,  75,000  bolivars  per  annum, 
and  from  the  fifth  to  the  eighteenth  year  1,680,000  bolivars,  at  the 
rate  of  5,000  bolivars  fortnightly,     (art.  7.) 

It  is  evident  that  on  February  11,  1893,  Rudloff  was  placed  in  pos- 
session of  the  market  of  San  Jacinto  and  other  premises  mentioned  in 
article  1,  and  that  on  that  same  day  he  commenced  the  construction 
works. 

On  the  11th  of  the  following  May  the  governor  of  the  Federal  Dis- 
trict demanded  of  Rudloff"  payment  for  the  police  which  rendered 
services  at  the  market,  adducing  therefor  the  referred  to  contract, 
said  payment  having  been  satisfied  b}^  Rudloff,  compelled  to  it  b}^  the 
mentioned  authorit}'  and  having  previously  protested  against  the  same. 

In  September,  1893,  the  governor  of  the  Federal  District  submitted 
the  mentioned  contract  entered  into  with  Rudloff'  to  the  consideration 


REPORT  OF  ROBERT  C.  MORRIS.  439 

of  the  municipal  council,  and  said  corporation  in  an  accord  issued  on 
the  8th  of  the  month  and  year  just  mentioned  resolved: 

First,  that  the  forementioned  contract  be  declared  void;  second,  that  the  governor 
be  authorized  to  take  possession  forthwith  of  themarliet  and  organize  it  in  conform- 
ity with  the  provisions  of  the  ordinance  of  February  20,  1884,  in  force  with  regard 
to  markets,  and  with  the  others  agreeing  therewith;  third,  to  accord  for  the  demol- 
ishmentof  the  works  carried  out  in  the  Plaza  de  El  Venezolano. 

This  resolution  was  complied  with  in  all  its  parts;  that  is  to  say,  the 
contract  was  annulled  and  the  construction  of  works  done  by  Rudloff 
was  demolished. 

The  nonjurisdiction  of  the  Commission  was  alleged  by  the  honorable 
agent  for  Venezuela  and  held  by  the  honorable  Commissioner  for  Ven- 
ezuela, Doctor  Paul,  and  the  honorable  umpire,  in  his  decision  of 
October  24,  decided  in  favor  of  the  jurisdiction  of  the  Commission 
and  consequently  the  case  was  submitted  to  it. 

In  view  of  the  forementioned  statement,  perfectly  in  accordance 
with  evincing  documents  and  proved  facts,  the  Venezuelan  Commis- 
sioner proceeds  to  draw  his  conclusions. 

The  market  is  a  work  belonging  to  the  municipality,  but  the 
National  Executive  appears  as  contracting  it,  represented  by  the  min- 
ister of  public  works,  together  with  the  governor  of  the  Federal  Dis- 
trict. 

The  municipal  council  of  the  Federal  District  had  no  right  to  annul 
of  its  own  free  will  the  referred  to  contract  in  the  resolution  of  Novem- 
ber 13,  1893,  because,  as  the  municipality  was  one  of  the  contracting 
parties,  it  could  not  at  the  same  time  judge-as  to  the  validity  or  nullity 
of  the  same.  To  obtain  said  nullity  the  municipality  should  apply  for 
a  lawsuit  to  the  competent  tribunals. 

The  contract  was  not  submitted  to  the  National  Congress  in  its  reg- 
ular sessions  of  1894  for  its  approval  or  disapproval,  as  required  by 
the  constitution  then  in  force,  and  required  also  by  the  one  actually  in 
force;  but  it  is  not  just  that  said  omission  should  be  ascribed  to  the 
contractor,  Rudloff,  but  to  the  National  Executive,  to  whom  the  com- 
pliance of  said  formalit}'  corresponded. 

It  is  evident  that  the  Government  of  Venezuela  owes  the  claimants 
an  indemnification  for  having  suddenly  put  a  stop  to  a  contract  which 
their  legator,  Henry  F.  Rudloff',  was  carrying  out;  but  the  undersigned 
thinks  that  the  amount  they  demand  of  3,698,801  bolivars  is  exceed- 
ingly exaggerated,  and  he  agrees  to  grant  them  an  indemnification  of 
$75,745  United  States  gold. 

United  States  and  Venezuelan  Claims  Commission,  sitting  at  Caracas, 

Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Sofia 
Ida  Wiskow  de  Rudloff'  and  Frederick  W.  Rudloff',  claimants  against 
the  Republic  of  Venezuela,  No,  41,  the  sum  of  seventy -five  thousand 
seven  hundi-edand  forty-five  dollars  (175,745.00)  in  United  States  gold 
is  hereby  awarded  in  favor  of  said  claimants,  which  sum  shall  bo  paid 
by  the  Government  of  Venezuela  to  the  Government  of  the  United 


440  REPORT  OF  ROBERT  C.   MORRIS. 

States  of  America,  in  accordance  with  the  provisions  of  the  convention 
under  which  this  awai-d  is  made. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  Unsted  States. 
Carlos  F.  Grisanti, 
Comndssioner  on  the  part  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

Eduardo  Calcano  Lanaosia, 

Secretary  on  the  part  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  November  4,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  George  Crowther,  claimant,  |  -^^  ^q 

The  Republic  of  Venezuela.  J 

BRIEF  ON  BEHALF  OF  THE  UNITED  STATES. 

I. 

STATEMENT    OF   FACT. 

The  United  States  presents  in  this  case  the  claim  of  George  Crow- 
ther, a  native-born  citizen,  for  the  sum  of  10,220  bolivars  for  the  loss 
of  furniture,  fittings,  and  apparatus  contained  in  his  dental  office  at 
Barquisimeto,  and  for  a  further  sum  to  be  determined  for  the  loss  of 
sealed  papers,  stamps,  medals,  and  coins  which  had  been  collected  for 
many  years  by  the  claimants.  The  claimant  requests  that  the  value  of 
such  sealed  papers,  stamps,  medals,  and  coins  shall  l)e  determined  by 
a  committee  of  experts  to  be  appointed  by  this  honorable  Commission. 

The  claimant  had  been  established  in  his  profession  at  Barquisimeto 
during  a  period  of  seven  years,  and  had  equipped  his  office  with  all  of 
the  necessary  furniture,  materials,  and  appliances  for  the  conduct  of 
his  professional  work. 

In  the  month  of  June,  1902,  the  forces  of  the  Government  of  Vene- 
zuela, under  the  command  of  Gen.  Santiago  Briceno,  took  possession 
of  that  portion  of  the  town  where  the  claimant's  office  was  located,  and 
during  such  occupation  carried  ofi'  or  destroyed  all  of  the  furniture, 
dental  materials,  instruments,  and  tools  contained  in  the  office  of  the 
claimant.  The  collection  of  stamps,  medals,  coins,  and  sealed  papers 
belonging  to  the  claimant  was  also  taken  or  destroyed  by  the  Govern- 
ment troops. 

The  claimant  has  made  oath  that  the  value  of  the  contents  of  the 
office  was  10,220  bolivars.      He  has  also  made  a  sworn  list  of  the 


KEPORT  OF  ROBERT  C.  MORRIS.   '  441 

medals,  coins,  sealed  papers,  and  stamps,  but,  inasmuch  as  he  had  been 
collecting  for  a  period  of  twenty  years,  he  does  not  make  any  state- 
ment as  to  the  value  of  this  collection,  as  it  might  appear  to  be  exag- 
gerated, and  therefore  leaves  the  value  to  be  ascertained  by  a  committee 
of  experts  to  be  appointed  by  this  honorable  Commission. 

II. 

The  facts  in  this  case  are  amply  supported  in  every  detail^  not  only 
hy  the  sicorn  memorial,  hut  hy  the  proceedings  taken  hefore  the  proper 
authorities. 

The  evidence  clearlj'-  shows  that  the  property  was  destroyed  or  car- 
ried off  by  the  Government  troops  under  the  command  of  General 
Briceno.  This  evidence  consists  in  proceedings  had  in  accordance  with 
the  requirements  of  Venezuelan  law,  at  which  the  representative  of 
Venezuela  appeared,  and  there  can  be  no  question  as  to  the  sufficiency 
of  the  proof. 

III. 

The  Government  of  Venezuela  is  clearly  liable  for  the  wrongs  com- 
plained of  done  hy  its  military  authorities. 

There  can  be  no  question,  as  a  matter  of  international  law,  that  the 
Government  of  Venezuela  is  responsible  for  the  destruction  and  loss 
of  the  property  of  the  claimant. 

See  the  opinion  of  the  Chilean  Claims  Commission  in  the  case  of 
W.  S.  Shrigley,  in  the  fourth  volume  of  Moore's  International  Arbi- 
trations, page  3711.  The  facts  in  this  case  were  that  during  the  civil 
war  in  Chile  in  1891  the  claimant,  a  citizen  of  the-United  States, 
removed  his  family  from  his  residence  at  Miramar,  leaving  the  house 
in  the  charge  of  his  servants.  Subsequently  certain  troops  of  the 
Government,  under  the  command  of  their  officers,  occupied  the- prem- 
ises and  despoiled  and  carried  away  property  to  a  considerable  amount. 
The  horses  of  the  Government  regiment  were  quartered  in  the  garden 
and  park,  and  the  trees,  plants,  and  fences  were  destroyed  and  the 
house  completely  sacked.  The  Commission  unanimously  rendered  a 
decision  in  favor  of  the  claimant. 

See  also  the  case  of  the  estate  of  William  E.  Willet,  in  the  fourth  vol- 
ume of  Moore's  International  Arbitrations,  at  page  3743.  In  this  case 
the  Government  forces  of  Venezuela  took  possession  of  a  warehouse 
in  Caracas,  leased  by  Mr.  Willet,  an  American  citizen,  and  converted 
it  into  a  place  of  defense,  continuing  in  possession  of  it  for  several 
years,  and  destroying  or  consuming  in  the  meantime  everything  of 
value  in  the  building.  The  Commission  made  an  award  in  favor  of  the 
claimant. 

See  also  the  case  of  Jean  Jeannaud,  in  the  third  volume  of  Moore's 
International  Arbitrations,  at  page  3(>00,  where  the  claimant,  a  French 
citizen,  demanded  compensation  for  a  qnantit}^  of  cotton  destroyed  l),y 
the  United  States  forces  during  the  civil  war.  It  was  shown  in  this 
case  that,  after  an  engagement  between  the  United  States  forces  and 
the  Confederates,  and  the  retreat  of  the  latter,  the  troops  of  the  United 
States  burned  a  ginhouse  in  which  the  cotton  of  the  claimant  was 
stored.  The  Commission  held  that  the  claimant  was  entitled  to  com- 
pensation for  his  losses  and  made  an  award  accordingly. 


442  '   REPORT  OF  ROBERT  C.  MORRIS. 

IV. 

A:n  award  sJwidd  he  made  to  the  claimant  of  10^220  holwars^  and  such 
further  amount  as  tnay  he  determined  hy  a  committee  to  he  appointed. 

The  ,cvidoncc,  as  we  have  already  stated,  clearly  shows  the  loss  of 

the  contents  of  the  office  of  the  claimant  and  of  his  collections.     The 

claim  is,  under  the  circumstances,  moderate,  fair,  and  just,  and  we 

submit,  therefoi-e,  that  an  awp.rd  should  be  made  for  the  entire  claim. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 


[Translation.] 


George  Crowther  ) 

V.  V  Claim  No.  42. 

Venezuela.         j 

ANSWER. 

Honorable  members  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  George  Crowther,  and  respectfully  informs  the 
tribunal. 

The  present  claim  arises  from  the  loss  of  professional  instruments 
of  the  claimant,  and  of  a  collection  of  medals,  coins,  stamps,  and 
papers  which  he  sa3's  he  owned,  and  which  was  caused  by  the  attack 
upon  the  city  of  Barquisimeto  by  revolutionary  forces  during  the 
month  of  June  of  last  year. 

The  claimant  himself  affirms  that  the  house  where  he  had  his  dental 
office  located  was  occupied  by  a  part  of  the  Government  forces  which 
defended  the  locality  against  an  imminent  and  inevitable  attack. 

At  the  same  time  that  there  is  shown  b}"  thesame  statement  of  facts 
the  dut}^  under  which  the  military  chief  acted  in  adopting  the  meas- 
ures he  did  adopt,  the  manifest  imprudence  of  the  claimant  in  having 
left  the  articles  whose  value  he  claims  to  the  disposition  of  the  soldiers 
appears.  It  can  not  be  supposed  that  the  occupation  of  the  house 
where  he  had  his  office  located  was  so  sudden  that  it  did  not  permit 
him  to  secure  his  properties;  besides,  upon  this  point  the  claimant 
has  not  produced  any  proof. 

The  undersigned  considers  that  the  proof  of  the  loss  of  the  pro- 
fessional instruments,  furniture,  and  apparatus  is  deficient  because 
their  number  and  kind  have  not  been  specified,  necessary  considera- 
tions to  determine  the  real  amount  of  the  claim. 

In  respect  to  the  collections  which  the  claimant  owned,  there  are  no 
data  in  the  documents  by  means  of  which  they  can  be  justly  valued. 
The  simple  affirmation  of  the  interested  party  can  not  be  taken  into 
account  in  order  to  prove  their  existence.  The  photographs  exhibited 
lack  the  authenticity  required  to  constitute  clear  proof,  and  it  would 
be  very  venturesome,  to  say  the  least,  to  base  on  them  a  favorable 
finding  in  the  claim. 

The  undersigned  does  not  wish  to  put  the  good  faith  of  the  claimant 
in  doubt,  but  to  warn  the  Commission  concerning  the  results,  which 
in  most  cases  are  unjust,  to  which  the  admission  of  such  proofs  might 
give  rise. 


REPORT  OF  ROBERT  C.  MORRIS.  443 

Therefore,  the  undersigned  considers  that  the  tribunal  ought  to 
disallow  the  claim  arising  from  the  loss  of  the  furniture  and  pro- 
fessional instruments,  as  occasioned  b}^  the  claimant's  own  imprudence, 
and  the  claim  arising  out  of  the  loss  of  the  collection  on  account  of 
the  want  of  all  data  which  would  justif}^  the  demand. 

Caracas,  25th  July,  1903. 

F.  Arkoyo  Parejo. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf ~ 
,  of  George  Crowther,  claimant,  I  ^      . « 

V.  I        '      * 

The  Republic  of  Venezuela. 

DECISION  AND  AWARD. 

By  the  Commission: 

The  Commission  awards  to  the  claimant  the  sum  of  $3,138.75 
United  States  gold. 

October  13,  1903. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf 
of  George  Crowther,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  42. 


By  the  Commission: 

The  memorialist  states  that  for  a  number  of  j^ears  he  has  been 
established  in  the  practice  of  his  profession  of  a  dentist  at  Barquisi- 
meto,  Venezuela,  where  he  had  equipped  his  office  with  all  the  neces- 
sary furniture,  appliances,  and  materials  for  the  conduct  of  his  pro- 
fessional work;  that  about  the  middle  of  January,  1902,  the  Government 
troops  under  the  command  of  Gen.  Santiago  Bricefio,  took  possession 
of  that  part  of  the  town  where  his  (claimant's)  office  was  located,  and 
during  such  occupation  carried  off  or  destroyed  all  of  the  furniture, 
dental  materials,  instruments,  and  tools  belonging  to  the  claimant,  the 
value  of  said  property  being  the  sum  of  10,220  bolivars.  In  addition 
to  tills  loss,  the  claimant  asserts  that  for  many  years  he  had  been  a 
collector  of  medals,  rare  coins,  sealed  paper,  and  stamps,  and  that  his 
■collection,  which  was  of  great  value,  was  also  taken  away  or  destroyed. 
The  claimant  does  not  make  any  estimate  of  the  value  of  his  collection, 
but  leaves  the  same  to  be  ascertained  by  the  Commission. 

The  documentary  evidence  presented  is  deemed  sufficient  as  to  the 
fact  of  claimant's  loss,  and  that  it  was  occasioned  in  such  a  way  as  to 
establish  a  lia})ility  therefor  upon  the  Venezuelan  Government.  The 
valuation  placed  upon  the  furniture  a.nd  office  equipment  seems  just 
and  reasonable,  and  is  allowed  in  full.  The  sum  of  $1,000  is  allowed 
for  the  collection. 

An  award  will  therefore  be  made  herein  in  the  sum  of  $3,000,  with 
interest  on  said  sum  at  the  rate  of  3  per  cent  per  annum  from  June 
15,  1902,  to  December  31,  1903,  the  anticipated  date  of  the  tinal  award 
by  the  Commission. 


444  REPORT  OF  ROBERT  C.  MORRIS^ 

Tho    United  States   and  Venezuelan   Claims  Commission^  sitting-  at 

Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  George 
Crowther,  claimant,  >\  the  Republic  of  Venezuela,  No.  42,  the  sum  of 
three  thousand  one  hundred  thirty-eight  75  1(»0  dollars  (13,138.75) 
in  United  States  gold  is  hereby  awarded  in  favor  of  said  claimant, 
which  sum  shall  be  paid  l)y  the  Government  of  Venezuela  to  the  Gov- 
ernment of  the  United  States  of  America  in  accordance  with  the 
provisions  of  the  convention  under  which  this  award  is  made. 

William  E.  Bainbridge, 
Cowmissione?'  on  f/ie  part  of  the  United  States  of  Ainerica. 

J.  DE  J.  Paul, 

Com/missioner  on  the  part  of  Venezuela. 
Attest  to  award: 

Harry  Barge,  President. 
Attest: 

Rudolph  Dodge, 

Secretary  on  the  jMrt  of  the  United  States  of  America. 
J.  Padr6n  Uztariz, 

Secretary  on  the  part  of  Y€7iezuela. 

Delivered  October  15,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
^       and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  "l 

of  George  W.  Upton,  claimant,  1  -vr      ,o 

V.  r 

The  Republic  of  Venezuela.  J 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  filed  b}'  the 
agent  of  V^enezuela  in  answer  and  a  brief  was  filed  by  the  agent  of 
the  United  States  in  replication. 

[Translation.] 

George  W.  Upton  | 

V.  V  Claim  No.  43. 

Venezuela.         j 

ANSWER. 

Honorable  members  of  the  Venezuelan -American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  b}-  Messrs.  Carlos  Urrutia  and  Ascanio  Negretti, 
who  call  themselves  the  substituted  attorneys  of  the  American  citizen 
George  W.  Upton,  and  respectfulh^  informs  the  tribunal: 


KEPORT  OF  ROBERT  C.  MORRIS.  445 

(1)  In  the  first  place,  the  undersigned  should  call  attention  to  the  fact 
that  among  the  documents  produced  with  the  claim  and  Avhich  have 
been  presented  to  him,  the  power  which  legitimizes  the  representation 
of  the  above-named  lawyers,  does  not  appear;  since,  in  order  to  rep- 
resent the  rights  of  a  third  party  before  this  honorable  Commission,  a 
special  power  is  necessar}',  because  it  is,  beyond  doubt,  an  exceptional 
tribunal,  and  that  which  is  ordinarily  conferred  to  act  judicially  and 
extrajudicially  concerning  such  rights,  would  not  be  sufficient.  If  the 
one  which  said  lawyers  have  produced  is  couched  in  said  general  terms, 
the  undersigned  will  thenceforth  contest  the  want  of  power  or  represen- 
tation for  the  prosecution  of  the  suit. 

(2)  The  claim  arises  out  of  alleged  damages  suffered  by  the  constituent 
of  the  attorneys  and  which  they  deduce  from  the  nonperformance  of 
a  contract  which  is  said  to  have  been  made  by  the  former  with  the 
Government  of  Venezuela  for  the  establishment  of  a  mortgage  bank. 
]S'o  proof  whatever  is  furnished  of  the  existence  of  such  an  agreement; 
only  private  letters  of  some  public  officials  are  produced  from  the  text 
of  which  they  pretend  to  derive  it  without  an}"  reasonable  foundation. 
It  is  evident  that  a  contract  of  the  nature  and  importance  of  the  one 
which  is  set  up  could  not  be  proven,  except  by  the  presentation  of  the 
formal  document.  It  is  not  believed,  on  the  other  hand,  that  the  inter- 
ested party  would  have  commenced  his  operations  and  carried  them  to 
the  point  to  which  they  are  said  to  have  been  brought,  without  count- 
ing upon  a  guarantee  that  would  protect  him  from  every  accident  or 
contingencv.  No  proof  whatever  exists  in  the  papers  upon  which  the 
responsibility  of  the  Government  can  be  founded.  If  really  Mr.  Tpton 
Avas  carrying  on  negotiations  with  it,  and  performed  all  the  acts  set 
forth  in  the  memorial  and  incurred  all  the  sums  claimed  in  expenses, 
it  is  to  be  supposed  that  he  did  so  at  his  own  risk  and  with  a  view  to 
assuring  the  negotiation. 

The  claim  ought  to  be  rejected  because  it  is  unfounded. 
Caracas,  July  31,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  imder  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United   States  of  America  on   behalf 
of  George  W.  Upton,  claimant, 

V. 

The  Republic  of  Venezuela. 


-No.  43. 


REPLICATION  ON  BEHALF  OF  THE  TTNITED  STATES. 

The  United  States  of  America  has  presented  in  this  matter  a  claim 
on  behalf  of  George  W.  Upton,  a  citizen  of  the  United  States,  amount- 
ing to  525,000  bolivars,  arising  out  of  the  failure  of  the  Government  of 
Venezuela  to  carry  out  a  contract  made  with  thc^  claimant  for  the  estab- 
lishment of  a  mortgage  bank.  Mr.  l^pton  originally  entered  into 
negotiations  with  the  Republic  of  Venezuela,  represented  by  Gen. 
Ignacio  Andrade,  and,  having  received  certain  promises  from  him  and 
other  officials,  went  to  the  United  States  to  interest  capitalists  to  assist 
him  in  carrying  out  his  project.     In  this  respect  he  was  successful,  as 


446  "REPORT    OF    ROBERT    0.   MORRIS. 

appears  by  tho  agrccmont  of  Messrs.  Mansur,  Wilkins  &  Burdette, 
herewith  sul)inittecl,  as  well  as  from  the  numerous  letters  and  telegrams 
which  are  also  placed  in  evidence.  Mr.  Upton,  having  advised  tho 
Government  of  Venezuela  of  the  success  of  his'  negotiations  in  the 
United  States,  received  official  word  from  J.  Calcano  Mathieu,  minister 
of  foreign  atiairs,  that  he  should  authorize  some  person  resident  in 
Caracas  to  execute  the  necessary  contract.  In  accordance  with  this 
suggestion  Mr.  Upton  authorized  Gen.  Jose  Rafael  Kicart  to  sign  the 
necessary  contract  on  his  behalf.  This  contract,  which  was  entered 
into  by  Kamon  Tello  Mcndoza.  minister  of  hacienda,  and  Jose  Rafael 
Ricart,  on  December  8,  1899,  and  a  copy  of  which  has  already  been 
submitted  in  evidence,  was  delivered  to  the  Government  of  Venezuela. 
Mr.  Upton  and  his  representative.  General  Ricart,  sought  to  obtain  a 
copy  of  the  contract,  but  the}^  were  unable  to  do  so.  The  capitalists 
whom  Mr.  Upton  had  interested  in  the  enterprise  would  not  carry  out 
their  part  of  the  agreement  until  the  contract  was  exhibited  to  them. 
Mr.  Upton  being  unable  to  produce  the  contract,  the  entire  negotia- 
tions, which  had  entailed  much  expense  on  the  part  of  the  claimant, 
fell  through,  and,  in  consequence,  this  claim  is  now  made. 

I. 

In  the  answer  of  Venezuela  to  this  claim  objection  is  made  to  its 
presentation  by  Messrs.  Carlos  Urrutia  and  Ascanio  Negretti,  the  sub- 
stituted attorneys  of  the  claimant,  on  the  ground  that  the  power  is 
general  in  its  nature  and  that  a  special  power  is  necessary  to  present 
this  claim  before  this  Commission. 

In  reply  to  this  we  respectfully  call  the  attention  of  the  Commission 
to  Article  II  of  the  protocol,  which  provides  that  the  Commission  shall 
be  bound  to  receive  and  consider  all  written  documents  or  statements 
which  may  be  presented  to  it  by  or  on  behalf  of  the  respective  Gov- 
ernments in  support  of  or  in  answer  to  any  claim.  This  claim  has 
been  presented  to  this  honorable  Commission  on  behalf  of  the  United 
States  and  the  technical  question  of  the  scope  of  the  power  of  the 
attorneys  of  the  claimant  can  not  be  raised. 

11. 

It  is  contended  in  the  answer  of  Venezuela  that  no  proof  whatever 
is  furnished  of  the  existence  of  the  contract  between  the  claimant  and 
the  Government  of  Venezuela. 

In  reply  thereto  an  affidavit  of  Gen.  Jose  Rafael  Ricart,  who  signed 
the  original  contract  wath  the  Government  of  Venezuela  on  behalf  of 
the  claimant,  is  herewith  submitted  in  evidence.  In  this  affidavit  Gen- 
eral Ricart  declares  that  he  executed  the  contract  which  has  already 
been  placed  before  this  honorable  Commission  on  the  8th  day  of 
December,  1899,  in  the  name  of  Mr.  Upton;  that  the  contract  was 
also  signed  by  Ramon  Tello  Mendoza,  the  minister  of  hacienda,  acting 
for  the  Government,  and  that  this  contract  was  signed  and  sealed  in 
accordance  with  the  requirements  of  Venezuelan  law.  This  affidavit 
is  the  best  possible  proof  that  can  be  submitted  to  this  Commission  in 
the  absence  of  the  original  contract.  In  addition,  the  correspondence 
which  has  already  been  placed  before  this  tribunal  and  that  which  is 
also  submitted  herewith  bears  out  all  of  the  circumstances  of  this 
claim  and  the  damages  suffered  by  the  claimant. 


REPORT  OF  ROBERT  C.  MORRIS.  447 

III. 

An  award  should  be  made  for  the  amount  of  this  claim. 
Respectfully  submitted. 

Robert  C.  Morris, 

Age7it  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas.  Venezuela. 


The  United  States  or  America  on  behalf 
of  George  W.  Upton,  claimant, 

V. 

The  Republic  of  Venezuela. 


r  No.  43. 


Doctor  Paul,  Commissioner: 

This  claim  is  presented  on  behalf  of  George  W.  Upton,  a  citizen  of 
the  United  States,  demanding  from  the  Government  of  Venezuela  the 
payment  of  the  sum  of  525,000  bolivars  for  expenditures,  voyages, 
publications,  commissions,  attorney's  fees,  probable  earnings  not  real- 
ized, damages,  and  other  expenses  incurred  by  George  W.  Upton  in 
his  exertions  to  obtain  from  the  Government  of  Venezuela,  and  the 
ratification  by  Congress,  a  contract  to  establish  the  mortgage  l)ank 
that  Mr.  Upton  was  endeavoring  to  organize  in  this  city  with  a  large 
capital  to  make  long-term  loans  at  very  low  rates  of  interest;  to  coin 
2,000,000  bolivars  in  silver,  and  to  put  the  bank  in  a  position  to  con- 
tract for  the  silver  coinage  in  such  a  manner  that  it  would  not  afi'ect 
the  price  of  the  circulating  silver,  thus  preventing  serious  differences 
in  the  exchange. 

From  the  letters  and  private  notes  presented  as  evidence  in  this 
claim  it  only  appears  that  Mr.  Upton  came  to  hope  that  he  could 
establish  a  mortgage  bank  in  this  countrj^  having  as  a  basis  only  the 
mere  ofiicial  promise  made  him  by  a  secretary  of  the  Andrade  govern- 
ment that  as  soon  as  Congress  would  authorize  the  coinage  of  2,000,000 
bolivars  in  silver  the  said  coinage  would  be  made  through  the  so-called 
"Bolivar  National  Bank,"  which  Upton  is  said  to  have  already  organ- 
ized in  Boston  with  a  Mr.  Mauser.  There  is  no  proof  that  tliere  had 
ever  been  made  by  the  Government  of  Venezuela  a  contract  that  was 
to  be  approved  by  the  Congress  of  the  Republic  for  the  organization 
of  the  said  "mortgage  bank,"  and  still  less  that  any  steps  had  ever 
been  taken  by  the  Government  of  Venezuela  to  consider  as  probable 
the  hypothetical  hanking  plans  and  schemes  referred  to  b}'  the  claim- 
ant. This  imaginary  structure  of  subscribed  millions  for  capital  of 
•the  "  Bolivar  National  Bank,"  the  going  and  back  trips  of  Mr.  Upton, 
the  cablegrams  to  General  Ricart,  the  letters  and  postal  cards,  are 
only  a  mess  very  similar  to  the  Crawford  will  and  to  the  millions 
deposited  in  the  Humbert's  iron  safe.  Neither  the  Crawfords  nor  the 
millions  have  ever  ai)peared;  so  with  the  capital  of  the  Bolivar  National 
Bank,  subscribed  to  in  Boston,  and  the  contract  made  with  the  Govern- 
ment of  Venezuela  for  the  establishment  of  the  bank,  give  any  sign  of 
existence. 

This  claim  must  be  disallowed. 


448  REPORT  OF  ROBERT  C.  MORRIS. 

The  United    States  and  Venezuelan    Claims   Commission,   sitting   at 

Caracas,  Venezuela. 

DECISION. 


The  United   States  of  America  on   behalf 
of  George  W.  Upton,  claimant, 

V. 

The  Republic  of  Venezuela. 


y  No.  43. 


The  above-entitled  claim  is  hereb\'  disallowed. 

William  E.  Bainbridge, 
Commissioner  on  the  j^ciTt  of  the  U^iited  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  on  the  part  of  Venezuela. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  2)art  of  Yenezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  September  29,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The   United   States  of  America  on  behalf  ~ 
of  Pedro  Miguel  Pares,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  44. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  the  agent  of  the  United  States  made  an  oral  argument  in 
support  of  it.     A  brief  in  answer  was  hied  by  the  agent  of  Venezuela. 

[Translation.] 

Pedro  Miguel  Par^s  )  • 

V.  V  Claim  No.  44. 

Venezuela.  j 

ANSWER. 

Honorahle  members  of  the  Voiezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  Pedro  Miguel  Pares,  and  respectfully  inform 
this  tribunal: 

I. 

The  present  claim  arises  out  of  damages  suffered  by  the  claimant  in 
various  properties  which  he  enumerates,  situated  in  the  State  of  Bar- 
celona, caused  by  the  forces  of  the  Government  and  the  revolution 
during  the  last  civil  war.  In  the  first  place  it  is  to  be  observed  that 
the  damages  attributed  to  the  constitutional  forces  are  not  specifically 
set  forth,  an  indispensable  condition  to  establish  the  responsibility  of 
the  Goverjiment,  since,  according  to  the  principles  of  international 


REPORT  OF  ROBERT  C.  MORRIS.  449 

law,  the  latter  is  not  obliged  to  make  reparation  for  damages  which 
may  have  been  caused  b}^  the  factions  which  had  taken  up  arms  against 
their  legitimate  government. 

Nor  is  the  American  nationality  of  the  claimant  properly  proven,  a 
requisite  which  is  indispensable  for  the  admission  of  his  demand  before 
this  honorable  tribunal.  According  to  section  7  of  the  law  passed  by 
the  Congress  of  the  United  States  on  the  12th  of  April,  1900,  which 
fixed  the  status  of  the  natives  of  the  island  of  Porto  Rico  (among 
which  the  claimant  is  found) — 

All  the  inhabitants  who  may  continue  to  reside  there,  and  who  were  Spanish  sub- 
jects on  the  11th  of  April,  1899,  then  residing  in  Porto  Rico,  and  their  children  born 
there  subsequently,  shall  be  held  to  be  citizens  of  the  United  States,  and  as  such 
entitled  to  the  protection  of  it,  except  those  who  have  desired  to  preserve  their 
loyalty  to  the  Crown  of  Spain  on  or  before  the  11th  day  of  April,  1900. 

So  that,  therefore,  according  to  the  law  which  has  just  been  cited, 
two  conditions  are  necessary  in  order  that  the  natives  in  the  island  of 
Porto  Rico  may  be  able  to  acquire  American  nationalit}^: 

First,  that  they  should  have  resided  in  said  island  on  the  11th  of 
April,  1899,  and  second,  that  they  should  have  continued  residing  there 
after  said  date;  and  as  in  the  case  under  consideration  it  appears  froui 
the  proofs  that  the  claimant  resided  in  Venezuela,  with  his  domicile  in 
the  State  of  Barcelona,  since  the  year  1895,  as  is  evidenced  by  the  pass- 
port exhibited,  he  can  not  invoke  the  protection  of  the  United  States, 
since  he  is  not  a  citizen  thereof,  nor  has  he  produced  any  proof  that 
thereafter  he  acquired  such  nationality. 

Therefore  the  claim  ought  to  be  disallowed  for  the  reasons  set  forth. 

Caracas,  August  4,  1903. 

F.  Arroyo  Parejo. 

The    United   States   and   Venezuelan  Claims  Commission,  sitting  at 

Caracas,  Venezuela. 

The  United   States  of  America  ox  behalf  ~ 

of  Pedro  Miguel  Pares,  claimant,  I  -^     ^^ 

V.  I        *      ' 

The  Republic  of  Venezuela. 

DECISION. 

By  the  Commission: 

The  Commission  dismisses  the  claim  without  prejudice,  for  want  of 
jurisdiction. 

Delivered  October  9,  1903. 

The  United  States  and  Venezuelan  Commission,  sitting  at  Caracas, 

Venezuela. 

The  United  States  of  America  on  behalf 
of  Pedro  Miguel  Pares,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  44. 


By  the  Commission: 

The  evidence  shows  that  the  claimant  herein  is  a  native  of  the  island 
of  Porto  Rico.     His  own  testimony  and  that  of  various  witnesses  is  to 

S.  Doc.  317,  5a-2 29 


450  REPORT  OF  ROBERT  C.  MORRIS. 

the  effect  that  he  has  resided  in  Venezuela  for  a  long  period  (rf  years. 
A  passport  was  issued  to  him  as  "'a  subject  of  Spain"  by  the  Spanish 
legation  at  Caracas  on  December  2,  18}>5,  good  for  one  year.  On 
the  back  of  this  passport  is  the  following: 

Registered  in  the  legation  of  the  United  States  at  Caracas,  Venezuela,  Dec.  19,  1901, 

William  W.  Russell, 

U.  S.  Secy,  of  Legation. 

The  act  of  Congress  of  April  12,  1900,  "to  provide  revenues  and  a 
civil  government  for  Porto  Rico,  and  for  other  purposes,"  contains  the 
following  provision: 

Sec.  7.  That  all  inhabitants  continuing  to  reside  therein  who  were  Spanish  sub- 
jects on  the  eleventh  day  of  April,  eighteen  hundred  and  ninety-nine,  and  then 
resided  in  Porto  Rico,  and  their  children  being  born  suV)sequent  thereto,  shall  be 
deemed  and  held  to  be  citizens  of  Porto  Rico,  and  as  such  entitled  to  the  protection 
of  the  United  States,  except  such  as  shall  have  elected  to  preserve  their  allegiance  t«> 
the  Crown  of  Spain  on  or  before  the  eleventh  day  of  April,  nineteen  hundred,  in 
accordance  with  the  provisions  of  the  treaty  of  peace  between  the  United  States  and 
Spain  on  the  eleventh  day  of  April,  eighteen  hundred  and  ninety-nine,  etc. 

The  memorial  does  not  state  facts  sufficient  to  bring  the  claim  within 
the  provisions  of  this  act  or  to  show  that  the  claim  is  one  owned  by  a 
citizen  of  the  United  States  within  the  terms  of  the  convention  con- 
stituting this  Commission.  It  must  therefore  be  dismissed  without 
prejudice,  for  want  of  jurisdiction. 

The  United  States  and  Venezuela  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf 

of  Pedro  Miguel  Paros,  claimant,  I  No  44 

V. 

The  Republic  of  Venezuela. 

DECISION. 

The  above-entitled  claim  is  hereby  dismissed  without  prejudice  for 
want  of  jurisdiction. 

William  E.  Bainbridge, 

Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  PaiJl, 

Commissioner  on  the  part  of  Yenezuela. 

Attest  to  award: 

Harry  Barge,  President. 

Attest: 

J.  Padron  Uztariz, 

Secretary  on  the  pai't  of  Yenezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  AmeHca, 

Delivered  October  9,  1903. 


REPORT  OF  ROBERT  C.  MORRIS.  45 1 

Before  the  Mixed  Commi.ssion  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  George  Turn  bull,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  45. 


and 

Jnited  States  of  America  on  behalf' 

le  Manoa  Company,  Limited,  claimant,      I  i^r      .^ 

The  Republic  of  Venezuela. 

and 

ED  States  of  America  on  behalf" 

^No.  47. 


The  United  States  of  America  on  behalf' 
of  the  Orinoco  Company,  Limited,  claimant, 

V. 

The  Republic  of  Venezuela. 


In  the  above-entitled  matters  there  were  three  distinct  claims  arising 
out  of  a  series  of  acts  on  the  part  of  the  Government  of  Venezuela, 
which  had  caused  injury  to  each  one  of  the  claimants  individually  and 
had  caused  a  serious  conflict  of  interest  among  them. 

These  claims  were  presented  to  the  Commission  separatel}^  but  they 
were  joined  b}^  Venezuela  in  the  answer,  and  the  Commission  con- 
sidered them  together. 

Because  of  the  conflict  between  these  claimants  the  agent  of  the 
United  States  found  himself  in  a  position  where  to  urge  each  claim 
specifically  would  be  in  each  instance  to,  more  or  less,  antagonize  the 
other  two.  It  was,  however,  apparent  that  this  conflict  of  interests 
had  arisen  out  of  the  tortuous  course  of  the  Government  of  Venezuela, 
and  the  agent  of  the  United  States  in  a  general  argument  upon  these 
three  claims  contended  that  damages  should  be  aw^arded  to  the  respec- 
tive claimants  for  the  amount  of  loss  actually  occasioned  them  as  a 
consequence  of  the  conduct  of  the  Government. 

The  specific  details  of  the  damages  and  injuries  were  set  forth  in  the 
memorial  in  each  of  the  cases  in  great  detail.  These  memorials  and 
the  evidence  submitted  with  them,  however,  did  not  present  a  com- 
plete or  systematic  arrangement  of  the  acts  of  the  Government  of 
Venezuela  which  were  complained  of,  and  in  order  that  the  interests 
of  these  citizens  of  the  United  States  should  be  full}"  conserved  the 
agent  of  the  United  States,  after  much  arduous  search  in  the  Recopila- 
cion  de  Leyes  y  Decretos  de  Venezuela,  the  files  of  the  Gaceta  Oficial, 
the  public  records,  and  the  archives  of  departments,  was  enabled  to 
prepare  the  following  synopsis  upon  which  his  oral  argument  to  the 
Commission  was  based: 

SYNOPSIS   of   acts   OF   THP:    government   of   VENEZUELA    IN    RELATION 

TO   THESE   CLAIMANTS. 

On  September  22,  1883,  the  Government  of  Venezuela  granted  to 
C.  C.  Fitzgerald,  his  associates,  assigns,  and  successors,  for  the  term 


452  REPORT  OF  ROBERT  C.  MORRIS. 

of  ninety-nine  years  a  concession  of  a  certain  portion  of  the  delta  of 
the  C)rinoco,  witli  the  exchisive  right  to  develoi)  the  resources  of  the 
territory  granted,  which  was  national  i)roperty.  The  grantee  was 
given  the  exclusive  right  of  establishing  a  colony  for  the  purpose  of 
ex|)loiting  the  mineral  and  agricultural  resources  and  for  the  develop- 
ment of  industries  and  manufactui'cs.  The  (Jovernment  agreed  to 
estaldish  two  jiorts  of  entry  within  the  territory  granted.  It  was  pro- 
vided in  the  contract  that  Fitzgerald  should  commence  the  work  of 
<'olonization  within  six  months  from  the  a})pi"oval  of  the  concession  by 
the  federal  council;  that  he  should  establish  a  system  of  immigration, 
promote  civilization,  open  necessary  ways  of  communication,  and 
arrang"e  that  the  compan^of  colonization  should  formulate  its  statutes 
and  establish  its  management  in  conformity  with  the  laws  of  Vene- 
zuela. There  were  favorable  provisions  in  the  contract  regarding 
taxation.  The  Government  agreed  to  organize  the  political,  adminis- 
trative, and  judicial  system  of  the  colony  and  to  provide  an  armed 
force  necessar}"  for  the  maintenance  of  public  order.  All  residents  of 
the  colony  were  exempted  from  militar}'  service  and  from  the  payment 
of  imposts  or  taxes,  local  or  national,  on  the  industries  in  which  they 
might  be  engaged  for  a  period  of  twent}'  3^ears.  An  extension  of  six 
months  was  provided  for  to  enable  the  concessionary  to  carry  out  his 
part  of  the  agreement  in  the  event  that  it  should  become  necessar}^ 
This  contract  was  approved  by  Congress  May  27,  1884.  (See  Vol. 
XI,  Recopilacion  de  Leyes  y  Decretos  de  Venezuela,  p.  93,  decree 
No.  2631.) 

On  June  14,  1884,  Mr.  Fitzgerald  conveyed  to  the  Manoa  Company, 
Limited,  the  entire  concession,  with  all  his  rights  thereunder.  It  had 
become  necessary  to  obtain  the  six  months'  extension  provided  for 
in  the  contract,  and  this  was  granted  on  February  19,  1884,  to  date 
from  the  22d  of  March  following.  In  the  following  August  an  expe 
dition  was  sent  out  by  the  Manoa  Company,  Limited,  which  com- 
menced operations,  as  certified  to  on  the  24th  of  September  by  the 
national  fiscal  supervisor  and  acting  governor  of  the  territor}^  as  being 
in  performance  of  the  contract,  in  accordance  with  its  stipulations. 

On  July  23,  1884,  the  Executive  and  the  federal  council  of  Vene- 
zuela decreed  an  organic  law  establishing  the  federal  territory 
"Delta."  (See  Vol.  XI,  R.  de  L.  v  Dec.  de  Ven.,  p.  204,  decree  No. 
2691.) 

On  July  28,  1884,  the  Executive  and  the  federal  council  decreed  the 
establishment  of  customs  at  Pedernales  and  Manoa,  with  their  respect- 
ive custom-houses  in  the  federal  territory  "Delta."  (See  Vol.  XI,  R. 
de  L.  y  Dec.  de  Ven.,  p.  209,  decree  No.  2691  (A),  and  resolution  No. 
2691  (B).) 

On  October  1,  1884,  the  custom-house  at  Manoa  was  temporarily 
suppressed  by  a  decree  of  the  Executive  and  the  federal  council.  (See 
Vol.  XI,  R.  de  L.  y  Dec.  de  Ven.,  p.  210,  decree  No.  2691  (C).)  This 
custom-house  was  evidentl}'  reinstated  at  some  subsequent  date  or  else 
combined  with  the  Pedernales  custom-house,  as  indicated  by  the  certifi- 
cates of  M.  Rivero  Escudera,  intendente  de  hacienda,  July  10,  1888, 
and  December  20,  1890,  hereinafter  referred  to.  It  is  stated  in  the 
memorial  of  Mr.  Turnbull  that  the  Government  withdrew  the  official 
in  charge  of  this  custom-house  in  1893. 

On  October  7,  1884,  the  federal  executive  decreed  that  the  company 
had  perfect  right,  in  accordance  with  the  concession,  to  exploit  the 


REPORT  OF  ROBERT  C.  MORRIS.  453 

products  which  were  to  be  found  within  the  limits  of  the  lands  com- 
prised in  the  concession. 

In  1885  Commissioner  ]VIcTurk,  representing  the  Government  of 
Great  Britain,  entered  upon  this  concession  and  took  possession  of  it 
in  the  name  of  his  Government.  The  territory  comprised  in  the  Fitz- 
gerald concession  formed  a  portion  of  the  Venezuelan  territory',  the 
ownership  of  which  was  disputed  by  Great  Britain. 

On  June  11,  1885,  the  federal  executive  decreed  that  the  lapse  of 
time  from  the  1st  of  Septeftiber,  1884,  to  that  date,  provided  in  the 
original  contract  with  Mr.  Fitzgerald,  should  not  be  construed^against 
the^ontractor.  (See  Vol.  XII,  R.  de  L.  y  Dec.  de  Ven.,  p.  36*0,  reso- 
lution No.  3068.) 

On  January  1,  1886,  a  contract  was  entered  into  between  Gen.  Guz- 
man Blanco,  the  minister  of  Venezuela  in  Europe,  and  George  Turn- 
bull,  executed  in  Nice,  France,  by  which  Turnbull  was  granted  the 
concession  which  had  originally  been  given  to  Fitzgerald. 

On  September  9,  1886,  by  resolution  of  the  Executiveand  the  fed- 
eral council,  the  Fitzgerald  contract  was  declared  insubsistent  and  no 
longer  in  force  because  the  concessionary  had  not  carried  out  the  pro- 
visions of  the  contract  within  the  time  prescribed.  (See  Gaceta  Oticial, 
No.  3852,  September  11,  1886.) 

On  September  10,  1886,  the  contract  with  Turnbull  was  ratified  by 
resolution  of  the  Executive  arid  the  federal  council.  (See  Gaceta  Ofi- 
cial.  No.  3852.) 

On  April  28, 188T,  Congress  decreed  the  approval  of  the  contract  of 
January  1,  1886,  between  the  federal  executive  and  George  Turnbull. 
(See  Gaceta  Oficial,  No.  4048.) 

On  June  10,  18ST,  the  minister  of  fomento  wrote  officially  to  Mr. 
Turnbull,  acknowledging  receipt  of  a  communication  from  him  in 
which  was  supplied  a  list  of  120  names  of  immigrants  and  expressing 
the  satisfaction  of  the  Government  with  the  information  that  immigra- 
tion had  begun  to  take  place  upon  the  concession  granted  to  Turnbull. 
(See  Gaceta  Oficial,  No.  4072.) 

On  October  30,  1887,  Manuel  Carias,  the  governor  of  the  territory 
"Delta,"  by  official  resolution  issued  a  provisory  tRle  to  George  Turn- 
bull  in  the  ownership  of  the  iron  mine  "  Imataca."  (See  Gaceta  Oficial, 
No.  4243.) 

On  November  29, 1887,  the  Executive  and  the  federal  council  author- 
ized the  governor  of  the  federal  territory  "Delta"  to  admit  the  request 
of  George  Turnbull  to  purchase  500  hectares  of  national  lands  ("Ima- 
taca"). (Sec  Vol.  XIV,  R.  de  L.  y  Dec.  de  Ven.,  p.  27,  resolution  No. 
4008.) 

On  March  13,  1888,  by  resolution  of  the  Executive  and  the  federal 
council  it  was  declared  that  the  iron  mine  "Imataca,"'  located  within 
the  500  hectares  of  public  land  on  the  shore  of  the  Cario  Corosimo 
which  George  Turnbull  had  purchased,  should  constitute  a  property 
apart  from  the  concession  which  had  been  granted  to  said  Turnbull. 
(Vol.  XIV,  R.  de  L.  y  Dec.  de  Ven.,  p.  81,  resolution  No.  4043.) 

On  March  13,  1888,  the  President  of  the  Repu])lic  and  the  federal 
council  approved  the  definitive  title  of  George  Turnbull  in  the  iron 
mine  "Imataca'"  for  a  period  of  ninety-nine  years.  (See  records  of 
rainisterio  de  fomento,  Caracas,  March  13,  1888.) 

On  March  13,  1888,  Turnbull  recorded  the  definitive  grant  of  the 
Imataca  mine  in  Caracas.     This  record  shows  a  valuable  consideration. 


454  REPORT  OF  ROBERT  C.  MORRIS. 

(Soo  Office  of  the  Rej^ister,  Caracas,  under  No.  1H5,  Record  1,  vol.  1, 
IS88.) 

Oil  the  same  day  there  was  tiled  in  the  ministerio  do  fomento  a 
resolution  to  the  effect  that  the  Executive  and  the  federal  council 
declared  that  this  mine  and  the  lands  comprised  within  the  grant  con- 
stituted a  property  apart  from  the  concession  to  Turnhull  under  the 
contract  entered  into  oil  the  1st  of  January,  1886,  and  that  conse- 
quently it  should  not  be  submitted  to  the  conditions  and  obligations 
set  forth  in  said  contract. 

On  J^ily  10,  1888,  M.  Rivero  Escudero,  intendente  de  hacienda,  -in 
the  custom-house  of  Manoa,  certified  that  the  iron  mine  known  as 
^'  Imataca,"  situated  within  that  jurisdiction,  belonging-  to  George 
Turnbull,  had  ])een  worked,  tunnels  and  galleries  constructed,  and 
3,000  tons  of  ore  mined;  that  houses  had  been  built  for  the  laborers; 
that  00  laborers,  two-thirds  of  them  from  foreign  countries,  were 
employed;  that  a  tramway  had  been  established  to  the  port  and  a 
steam  launch  put  in  service  for  the  necessities  of  the  colony,  and  that 
considerable  ore  had  been  exported  to  New  York. 

(On  December  20,  1890,  the  same  intendente  de  hacienda  certified 
that  the  mine  was  being  elaborately  developed,  and  that  the  ore  con- 
tinued to  be  shipped  to  New  York.) 

On  June  28,  1888,  a  resolution  of  the  Executive  with  the  vote  of  the 
federal  council  issued  to  George  Turnbull  a  definitive  title,  for  ninety- 
nine  years,  for  an  asphalt  mine  discovered  by  Turnbull  in  the  district 
Guzman  Blanco,  within  the  federal  territory  "Delta,"  on  the  margin 
of  Pedernales  Canal  on  Pedernales  Island,  a  provisional  title  for  this 
property  having  previousl}^  been  issued  by  the  governor  of  the  terri- 
tory. (See  records  ministerio  de  fomento,  dirreccion  de  riqueza 
territorial.) 

This  grant  w^as  recorded  in  the  Office  of  the  Register  in  the  federal 
territoiy  "Delta,"  and  this  is  confirmed  b}^  the  certificate  of  Hermo- 
genes  Lopez  at  the  Federal  Palace  in  Caracas,  June  30,  1888. 

On  October  3,  1888,  the  Executive  and  the  federal  council  declared 
the  adjudication  of  sale  to  George  Turnbull  of  this  asphalt  mine  for  a 
valuable  consideratibn.  Record  of  this  is  to  be  found  in  the  Office  of 
the  Register  in  Caracas,  under  No.  33,  Record  10,  Book  20,  third 
quarter  40,  1888. 

By  a  letter  of  December  5,  1889,  dated  Pedernales,  Carlos  Rivero 
Escudero  advised  the  minister  of  fomento  that  George  Turnbull  was 
developing  the  asphalt  mine,  having-  fully  equipped  it,  and  that  by  the 
statement  of  the  superintendent  of  the  company  460,000  kilograms  of 
asphalt  had  been  exported,  and  that  there  were  in  deposit  138,000. 

In  the  records  of  the  ministerio  de  fomento,  page  45,  1890,  is  to  be 
found  the  memorandum  that  George  Turnbull  was  working  this  asphalt 
mine. 

On  May  28,  1895,  the  Manoa  Company,  Limited,  petitioned  the 
Government  to  acknowledge  and  reaffirm,  by  a  decree,  its  rights  and 
ownership  to  the  entire  Fitzgerald  concession,  including  the  Imataca 
mine. 

On  June  18,  1895,  the  Executive,  the  President  of  the  Republic, 
declared  the  annulment  of  the  contract  for  the  concession  granted  to 
George  Turnbull,  and  also  declared  the  nullitv  and  insubsistency  of 
the  grant  of  the  Imataca  mine  for  which  definitive  title  was  issued 
March  13,  1888,  to  George  Turnbull,  and  also  the  concession  of  the 


REPORT  OF  ROBERT  C.  MORRIS.  455 

asphalt  mine  on  the  island  of  Pedernales,  the  definitive  title  of  which 
was  issued  on  June  28,  1888,  on  the  ground  that  Turnbull  during 
eight  years  had  not  complied  with  any  of  the  provisions  stipulated 
"excepting  some  steps  taken  for  the  exclusive  benefit  of  his  own  con- 
venience."    (See  Gaceta  Oficial,  No,  6433.) 

On  June  18,  1895,  the  Government  issued  a  decree  ratifying  and 
reaflirming  the  old  Fitzgerald  grant  in  the  Manoa  Company,  Limited, 
and  authorizing  said  company  to  renew  its  work  of  exploitation  and 
development.     (See  Gaceta  Oficial,  No.  6433.) 

On  Jul}'^  10,  1895,  an  Executiv-e  resolution  declared  that  the  Manoa 
Compan}-  did  not  own  the  Pedernales  asphalt  mine,  but  states  that  the 
Minas  de  Pedernales  Company,  the  successor  of  Turnbull,  is  its  owner. 
{See  Gaceta  Oficial,  No.  6451.) 

On  October  IT,  1895,  the  Manoa  Company,  Limited,  conve3^ed  its 
entire  grant,  excepting  the  500  hectares  of  land  embracing  the  iron 
mine  Imataca  and  the  asphalt  property  on  the  island  of  Pedernales, 
to  the  Orinoco  Company. 

In  1895  the  Orinoco  Iron  Syndicate  Company,  Limited,  to  which 
Turnbull  had  given  an  option  to  lease,  sent  representatives  to  the 
Imataca  mine  with  the  purpose  of  exploring  it,  but  a  fine  was  imposed 
upon  the  s^mdicate,  the  schooner  Neui  Uay,  chartered  by  the 
syndicate,  and  its  cargo,  for  an  alleged  breach  of  the  revenue  laws, 
amounting  to  249,785.17  bolivars.  The  Government  authorities 
claimed  that  this  tine  was  a  valid  lien  against  the  Imataca  mine, 
and  declared  that  it  must  he  sold.  The  Government  also  placed  an 
official  in  charge  of  the  property,  who  refused  to  surrender  it  except 
upon  the  order  of  the  legal  authorities. 

On  February  10,  1896,  the  Orinoco  Company,  Limited,  succeeded 
by  conveyance  to  all  the  right,  title,  and  interest  of  the  Manoa  Com- 
pan}^  Limited,  except  the  iron  and  asphalt  mines  above  mentioned. 

On  November  20.  1896,  the  national  executive  issued  a  resolution 
recognizing  '"as  valid  the  transfer  made  b}-  the  Manoa  Compan3%  Lim- 
ited, to  the  Orinoco  Company,  Limited,  of  all  its  rights  and  title  to 
and  in  the  aforesaid  concession  -with  the  exception  of  the  'Imataca 
iron  mine'  *  *  *  and  the  500  acres  of  land  comprising  its  super- 
ficial area,  as  well  as  the  asphalt  mine  called 'Minas  de  Pedernales,' 
situated  in  the  island  of  the  same  name,  together  with  200  hectares  of 
public  land  destined  for  its  exploitation." 

The  national  executive  also  acknowledged  as  valid  all  the  work  and 
other  acts  of  the  Orinoco  Company.  Limited,  done  b}"  it  in  the  fulfill- 
ment of  the  terms  of  the  resolution  of  June  18,  1895.  (See  Gaceta 
Oficial,  No.  6877.) 

On  December  30,  1896,  the  Manoa  Company,  Limited,  sold  to  the 
Orinoco  Company.  Limited,  the  Pedernales  and  Imataca  mines. 

On  Jul\^  22,  181>7,  the  Orinoco  Company,  Limited,  entered  into  a 
contract  with  the  Orinoco  Iron  Company  by  which  was  leased  the 
entire  iron  deposits  on  the  concession,  including  the  Imataca  mine. 

On  November  18, 1898,  the  ofticials  of  the  Government  of  Venezuela 
conducted  a  public  sale  at  Ciudad  Bolivar  of  the  Imataca  mine  and  the 
Orinoco  Company,  Limited,  became  the  purchaser  of  the  Governmenfs 
claim  under  the  supposition  that  the  mine  had  become  the  property  of 
the  Orinoco  Iron  Syndicate,  Limited,  which  was  the  subject  of  the  fine 
above  referred  to,  and  received  a  judgment  granting  all  the  rights  of 


456  REPORT  OF  ROBERT  C.  MORRIS. 

the  Orinoco  Iron  Syndicate  Company,  Limited,  and  the  mine  itself  for 
120,000  bolivars.     '  '   ' 

In  1809  TiiiMibuU  instituted  judicial  y>rocooding's  for  the  purpose  of 
setting  aside  the  sale  of  tiic  Imataca  mine  which  terminated  on  June  9, 
1900,  with  tiic  lindino-  tiiat  the  title  of  the  Imataca  mine  was  vested  in 
Turnbull  and  that  no  other  person  had  or  jwsses.sed  any  right,  title,  or 
interest  therein.     (See  Chiceta  Oticial,  No.  7958.) 

On  elune  23, 1900,  as  appears  by  the  document  submitted  in  evidence 
by  the  honorable  agent  of  Venezuela  before  this  Connnission,  George 
Turnbull  addressed  the  minister  of  fomento  requesting  that  the  Gov- 
ernment declare  invalid  the  resolution  of  June  18, 1895.  In  this  peti- 
tion Mr.  Turnbull  says: 

The  nullity  of  these  two  concessions  having  been  declared  and  I  being  restored  to 
the  enjoyment  of  my  legitimate  rights,  I  shall  not  object  in  any  way  to  making 
renunciation  in  favor  of  the  nation  of  all  the  rights  which  I  obtained  by  virtue  of 
said  contract  of  the  11th  of  ]May,  1S87.  This  is  the  date  of  the  execution  of  the  con- 
tract at  the  federal  palace  in  Caracas  which  was  executed  January  1,  1886,  provided 
always  that  it  shall  protect  me  in  the  peaceful  possession  of  my  iron  mine  Imataca, 
granting  me  for  that  purpose  all  reasonable  facilities. 

On  August  -1,  1900,  the  agent  of  Turnbull  was  put  in  possession  of 
the  mine.  In  addition  to  putting  Turnbull  in  possession  of  the  mine, 
the  Government  established  a  custom-house  upon  the  property.  (See 
Gaceta  Oticial,  No.  7989.) 

On  October  10,  1900,  the  Supreme  Chief  of  the  Republic  (the  de 
facto  President),  by  a  resolution  of  that  date,  promulgated  through 
the  ministry  of  fomento,  declared  the  Fitzgerald  contract  of  Septem- 
ber 22,  1888,  on  which  the  Orinoco  Company,  Limited,  based  its  rights,, 
insubsistent  and  annulled.     (See  Gaceta  Olicial,  No.  8053.) 

On  April  23,  1901,  the  Government  of  Venezuela  detinitelj^  located 
the  property  of  Turnbull  in  the  Imataca  mine,  as  appears  by  an  official 
map,  and  promulgated  the  same  bv  a  decree  to  that  effect.  (See 
Gaceta  Oticial,  No.  8214.) 

On  May  14,  1901,  the  Government  of  Venezuela  issued  an  abstract 
and  certificate  from  the  registry  of  the  records,  finding  and  certifying 
that  the  title  to  the  property  had  been  continuously — from  the  13th  of 
March,  1888,  when  the  same  was  granted,  until  the  l-ith  of  May,  1901 — 
vested  solely  in  Turnbull. 

On  the  27th  of  May,  1901,  the  Government  of  Venezuela,  desiring 
to  grant  relief  to  Turnbull,  canceled  and  released  all  taxes  imposed 
upon  the  Imataca  mine  during  the  time  it  was  unlawfully  withheld 
from  him.     (See  Gaceta,  No.  8240.) 

[Translation.] 

George    Turnbull,    the    Manoa   Company,  1 
sLimited,  The  Orinoco  Company,  Limited,     !  -^^^^  ^g   ^^   ^^^  ^^ 

The  Republic  of  Venezuela. 

ANSWER. 

Honorahle  Meiribers  of  the  Venezuelan- Ainerican  Mixed  Commission: 

The  agent  of  the  Government  of  Venezuela  has  studied  the  claims 
presented  by  George  Turnbull,  the  Manoa  Company,  Limited^  and  the 


REPORT  OF  ROBERT  C.  MORRIS.  45T 

Orinoco  Compaii}",  Limited,  and  since  they  all  have  a  common  origin, 
and  as  they  follow  the  same  order  of  facts,  he  has  considered  it  well 
to  answer  them  jointl}^,  which  he  proceeds  to  do  with  all  respect,  in 
the  following  terms: 

In  the  month  of  September,  in  the  year  1883,  the  Government  of 
Venezuela  entered  into  a  contract  with  Mr.  C.  C.  Fitzgerald  for  the 
exploitation  of  the  natural  products  of  a  certain  extent  of  territory 
situated  on  the  Delta  of  the  Orinoco,  it  being  stipulated  by  a  special 
clause  that  the  contractor  s-hould  have  started  the  work  within  the 
compulsory  term  of  six  months.  Said  term  having  expired,  Fitzgerald 
asked  and  obtained  from  the  Gov^ernment  for  the  object  indicated  am 
extension  of  six  months  more,  during  which  he  transferred  the  rights 
and  obligations  which  had  accrued  to  him  by  the  said  contract  to  a 
corporation  called  '*Manoa  Company,  Limited,"  organized  and  con- 
stituted in  the  city  of  New  York.  The  transfer  was  made  with  the 
consent  of  the  Venezuelan  Government. 

Neither  did  the  succeeding  company  commence  the  work  within  the 
period  of  grace  accorded,  as  is  evidence  b\'  the  document  which,  marked 
with  the  letter  A,  is  hereto  annexed;  nor  did  it  fulfill  any  of  the  other 
obligations  contracted  in  the  original  agreement,  for  which  reason,  in 
August,  1886,  the  Government,  after  refusing  a  new  extension  solicited 
by  the  concessionary  company,  declared  the  forfeiture  of  the  concession. 

By  the  pamphlet  annexed  to  this  answer,  it  is  clearly  proven  that 
the  Manoa  Company  was  constituted  with  a  fictitious  capital  and  lacked 
every  normal  condition  of  existence.  With  respect  to  the  right  which 
the  Government  had  to  declare  the  forfeiture  alluded  to,  it  is  beyond 
discussion  that  the  concessionary  company  not  having  complied  with 
the  obligations  which  it  contracted,  it  was  perfect  not  only  b}"  virtue- 
of  the  contract,  which  is  the  law  as  between  the  parties,  but  also  by 
the  laws  of  the  country  bearing  upon  this  matter  and  the  numerous 
precedents  established  in  analagous  cases. 

If  Fitzgerald  or  the  Manoa  had  considered  then  that  they  had  any 
right  based  upon  article  11  of  the  contract,  they  should  have  had 
recourse  to  the  tribunals  of  the  Republic  to  enforce  it,  demanding 
the  Government  to  prove  in  justice  the  cause  upon  which  the  declara- 
tion of  nullity  was  based.  Their  failure  to  do  so  justifies  the  presump- 
tion that  they  recognized  they  had  no  recourse.  r 

The  said  article  11  prevents  them  absolutely  now  from  having 
recourse  to  this  honorable  Commission,  since  by  it  it  was  expressly 
agreed  that  whatever  controversy  might  arise  between  the  parties 
to  the  contract  should  ])c  decided  by  the  local  tribunals. 

The  Fitzgerald  concession  having  been  annulled  legally  and  legiti- 
mately, as  has  been  shown,  the  Government  granted  it  to  another 
American  (;itizen  })y  the  name  of  George  Turnbull,  who  also  neglected' 
in  the  same  manner  to  fulfill  th(^  agreement,  and  who  foi"  a  period  of 
many  years  hindered  the  development  of  those  rich  regions,  occasioning 
to  the  country  incalculable  losses,  whi(;h  this  latter  has  resigned  itself 
to  sutler  until  now,  in  order  to  avoid  greatcu'  complications,  and  to- 
which  losses  it  appears  that  no  importance  is  given  in  the  mind  of  the 
claimants,  who  believe  themselves  to  be  the  only  ones  injured. 

Again,  the  Government  found  itself  obliged,  because  of  the  laches, 
(informalidad)  of  the  new  grantee,  to  reiterate  the  nullity  of  the  last, 
concession,  exercising  thereby  a  right  which  Turnbull  did  not  deny 
either. 


458  KKPOKT  OF  UOBERT  0.  MOKKIS. 

By  a  resolution  iido])tod  in  the  year  189«),  the  Manoa  Company  was 
aoaiii  plac'od  in  the  enjoynient  of  its  original  concession;  but  such  act, 
as  well  as  all  the  rights  which  are  alleg-ed  to  be  derived  therefrom 
(claim  of  the  Orinoca  Company,  Limited),  are  null  and  lack  juridic 
validity  and  leoal  ethcaey,  since  the  ^ranting  of  the  new  concession 
ought  to  have  been  done  with  all  the  leoal  formalities  which  the  con- 
stitution and  the  huvs  of  the  country  prescribe,  because  it  can  not  be 
admitted  juridically  that  rights  extinguished  ))y  the  effect  of  a  formal 
declaration  of  annulment  could  be  reestablished  without  the  necessary 
legal  steps.  Therefore  the  rights  which  not  only  the  Manoa  but  also 
the  Orinoco  have  enjoyed  since  the  new  and  illegitimate  concession 
are  rights  to  which  they  were  not  entitled.  Besides  both  companies 
lire  companies  without  cash  capital  and  which  have  not  been  registered 
in  Venezuela. 

The  claims  of  Mr.  TurnbuU  are  also  from  every  point  of  view  unjus- 
tified; in  the  first  place,  he  did  not  fulfill  the  obligations  which  he  con- 
tracted with  the  Government,  and  with  reference  to  the  Imataca  mine 
the  latter  has  made  frequent  and  important  concessions,  such  as  the 
extension  of  rights,  the  ratification  of  titles  at  his  solicitation,  etc., 
and  has  done  this  at  times  when  it  could  have  declared  the  for- 
feiture of  the  mining  concession,  for  want  of  its  fulfillment  and 
conformity  with  the  articles  of  the  reglamentary  law  of  August,  1887. 

Generall3%  all  the  difficulties  which  TurnbuU  has  experienced  in  the 
enjoyment  and  exercise  of  his  concessions  in  their  greater  part  have 
been  caused  b,y  the  opposition,  rivalries,  and  intrigues  of  those  claim- 
ing the  Manoa  concession,  and  because  he  did  not  enforce  his  rights 
before  the  tribunals  of  the  country,  since  when  he  has  had  recourse  to 
them,  full  justice  has  been  administered  to  him  in  various  proceed- 
ings. The  seizure  of  vessels  or  confiscation  which  is  complained  of 
in  one  part  of  his  claim  was  consented  to  by  him  on  account  of  his 
not  having  appealed  from  the  judgment  which  ordered  it,  and  which 
could  very  well  be  the  result  of  error  and  not  of  bad  faith,  as  he  unrea- 
isonably  supposes.  It  would  be  useless  to  enter  here  into  a  discussion 
of  the  justice  of  such  judgment,  since  he  neglected  to  take  the  pro- 
ceedings which  the  laws  authorize  for  an  appeal  from  it.  He  himself 
acknowledges  that  the  employee  to  whom  he  refers  was  reproved  by 
the  Government  and  dismissed.  Under  such  circumstances  it  is  not 
possible  to  establish  the  responsibility  of  the  latter  for  acts  of  unfaith- 
ful employees,  whose  conduct  it  has  disapproved  and  punished. 

In  general  terms,  the  agent  of  Venezuela  denies  the  present  claims 
as  well  as  all  the  facts  upon  which  they  are  alleged  to  be  founded, 
because  they  are  inexact;  and  since  the  record  presented  by  the  claim- 
ants and  that  which  is  extant  in  the  official  archives  is  very  extensive 
and  requires  for  its  complete  study  a  longer  space  of  time  than  that 
which  has  been  given  to  the  narrator,  he  prays  the  tribunal  to  con- 
cede him  a  new  extension  with  the  object  of  amplifying  the  present 
answer  and  producing  in  copies  duly  certified  the  documents  substan- 
tiating it. 

Caracas^  August  17,  19U3. 

F.  Akroyo  Parejo. 


BEPORT  OB^  EGBERT  C.  MORRIS.  459 

[Translation.] 

George   Turnbull,   the    Manoa   Company,  1 
Limited,  and  The  Orinoco  Company,  Limited,    [Claims  Nos. 
V.  ^  \      45,46,47. 

The  Republic  or  Venezuela.  J 

SUPPLEMENT  TO  THE  ANSWER. 

Jlonorahle  Memhei's  of  the  Venezuelan- American  Mixed  Commission: 

As  an  addition  to  what  has  been  set  forth  by  the  undersigned,  in 
the  answer  to  the  above-enumerated  claims,  and  with  the  object  of 
proving — 

(1)  That  the  Manoa  Company,  Limited,  did  not  comply  with  the  stip- 
ulations of  the  contract  made  with  C.  C.  Fitzgerald,  of  whom  it  is  the 
successor; 

(2)  That  likewise  George  Turnbull  did  not  fulfill  the  contract  made 
with  the  Nation; 

(3)  That  the  Venezuela  Government  has  made  to  this  latter  con- 
cessions which  would  compensate  the  damages  which  he  may  have 
sutfered,  and 

(4)  That  the  declaration  of  the  nullity  of  both  concessions  was  well 
founded  in  law,  the  undersigned  produces  the  following  documents: 

A  record  marked  No.  1,  which  contains  the  contract  made  with  Mr. 
C.  C.  Fitzgerald,  the  various  petitions  of  extension  asked  by  the 
Manoa  Company,  and  a  recital  of  the  reasons  upon  which  the  declara- 
tion of  nullity  was  based: 

A  record  marked  with  the  letter  "A,"  containing  a  memorandum 
upon  the  Manoa  affair; 

A  record  marked  No.  2,  containing  a  contract  made  with  George 
Turnbull,  and  the  reasons  which  gave  rise  to  its  forfeiture; 

A  record  marked  No.  3,  referring  to  the  Pedernales  mine ; 

A  record  marked  with  the  letter  '-B."  containing  a  memorandum 
concerning  the  ]Manoa  matter,  and  the  judgment  rendered  by  the  high 
federal  court  in  favor  of  George  Turnbull; 

A  record  marked  No.  7,  in  which  there  appear  various  concessions  of 
public  lands  made  in  favor  of  George  Turnbull; 

A  record  marked  No.  9,  relative  to  the  asphalt  mine  Pedernales; 

A  record  marked  No.  11,  relative  to  the  cession  of  public  lands  to 
the  American  citizen,  George  Turnbull; 

A  record  marked  No.  13,  containing  various  representations  of  George 
Tui-nbull  concerning  the  iron  mine  •"Imataca,"  and  the  state  of  bank- 
rui)tcy  of  the  Manoa  (bmpany,  Limited; 

A  record  marked  with  tlie  letter  ''C,"  containing  the  documentation 
forwarded  l)y  the  jefo  civil  of  th(5  district  Dalla  Costa,  State  of  Guiana, 
concerning  the  proceedings  of  the  Orinoco  Company,  Limited; 

A  record  marked  with  the  letter  "D,"  concerning  the  same  matter. 

Caracas,  August  24,  1908. 

F.  Arroyo  Parejo. 


4(30  REPORT  OF  ROBERT  0.  MORRIS. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting-  at 
Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 

of  George  Turnbull,  claimant, 

i\ 

The  Republic  of  Venezuela. 


No.  45. 


The  United  States  of  America  on  behalf 
of  The  ManoaCompan}' (Limited),  claimant,     |  t^      .^ 

V.  r    •    • 

The  Republic  of  Venezuela.  J 


The  United  States  of  America  on  behalf 
of  the  Orinoco  Company  (Limited),  claimant,     [  ^      ,f. 


V. 

The  Repurlic  of  Venezuela. 

Bainbridge,  Commissioner : 

On  the  22d  day  of  September,  1883,  a  contract  was  celebrated  in  the 
cit}^  of  Caracas,  Venezuela,  in  the  words  and  figures  following,  to  wit; 

[Translation.] 

The  minister  of  fomento  of  the  United  States  of  Venezuela,  duly  authorized  by  the 
president  of  the  Republic,  of  the  one  part,  and  Cyrenius  C.  Fitzgerald,  resident  of 
the  Federal  Territory  Yuruary,  of  the  other  part,  have  concluded  the  following 
contract: 

Article  I. 

The  Government  of  the  Republic  concedes  to  Fitzgerald,  his  associates,  assigns, 
and  successors,  for  the  term  of  ninety-nine  years,  reckoning  from  the  date  of  this 
contract,  the  exclusive  right  to  develop  the  resources  of  those  territories,  being 
national  property,  which  are  hereinafter  described. 

(1)  The  islancl  of  Pedernales,  situated  to  the  south  of  the  Gulf  of  Paria,  and  formed 
by  the  gulf  and  the  Pedernales  and  Cucuina  streams. 

(2)  The  territory  from  the  mouth  of  the  Araguao,  the  shore  of  the  Atlantic  Ocean, 
the  waters  above  the  Greater  Araguao  to  where  it  is  joined  by  the  Araguaito  stream; 
from  this  point  following  the  Araguaito  to  the  Orinoco,  and  thence  the  waters  of  the 
upper  Orinoco  surrounding  the  island  of  Tortola,  which  will  form  part  of  the  terri- 
tory conceded,  to  the  junction  of  the  Jose  stream  with  the  Piacoa;  from  this  point 
following  the  waters  of  the  Jose  stream  to  its  source;  thence  in  a  straight  line  to  the 
summit  of  the  Imataca  range;  from  this  summit  following  the  sinuosities  and  more 
elevated  summits  of  the  ridge  of  Imataca  to  the  limit  of  British  Guyana;  from  this 
limit,  and  along  it  toward  the  north  to  the  shore  of  the  Atlantic  Ocean,  to  the  mouth 
of  the  Araguao,  including  the  island  of  this  name,  and  the  others  intermediate  or 
situated  in  the  delta  of  the  Orinoco,  and  in  contiguity  with  the  shore  of  the  said 
ocean.  Moreover  and  for  an  equal  term,  tlie  exclusive  right  of  establishing  a  colony 
for  the  purpose  of  developing  the  resources  already  known  to  exist,  and  those  not 
yet  developed  of  the  same  region,  including  asphalt  and  coal;  for  the  purpose  of 
establishing  and  cultivating  on  as  high  a  scale  as  possible  agriculture,  breeding  of 
cattle,  and  all  other  industries  and  manufactures  which  may  be  considered  suitable, 
setting  up  for  the  purpose  machinery  for  working  the  raw  material,  exploiting  and 
developing  to  the  utmost  the  resources  of  the  colony. 

Article  II. 

The  Government  of  the  Republic  grant  to  the  contractor,  his  associates,  assigns* 
and  successors,  for  the  term  expressed  in  the  preceding  article,  the  right  of  introduc- 
tion of  houses  of  iron  or  wood,  with  all  their  accessories,  and  of  tools  and  of  other 
utensils,  chemical  ingredients  and  productions  which  the  necessities  of  the  colony 
may  require;  the  use  of  machinery,  the  cultivation  of  industries,  and  the  organiza- 


REPORT  OF  ROBERT  C.  MORRIS.  461 

tion  and  development  of  those  undertakings  which  may  l)e  formed,  either  Ijy  indi- 
viduals or  bv  companies  which  are  accessory  to  or  depending  directly  on  the 
contractor  or  colonization  company;  the  exportation  of  all  the  products,  natural  and 
industrial,  of  the  colony;  free  navigation,  exempt  from  all  national  or  local  taxes,  of 
rivers,  streams,  lakes,  and  lagoons  comprised  in  the  concession,  or  which  are  naturally 
connected  with  it;  moreover  the  right  of  navigating  the  Orinoco,  its  tributaries  and 
streams  in  sailing  vessels  or  steamships  for  the  transportation  of  seeds  to  the  colony 
for  the  purpose  of  agriculture,  and  cattle  and  other  animals  for  the  purpose  of  food 
and  of  development  of  breeding,  and,  lastly,  free  traflic  of  the  Orinoco,  its  streams 
and  tributaries,  for  the  vessels  of  the  colony  entering  it  and  proceeding  from  abroad, 
and  for  those  vessels  which,  either  in  balkst  or  laden,  may  cruise  from  one  point  of 
the  colony  to  another. 

Article  III. 

The  Government  of  the  Republic  will  establish  two  ports  of  entry  at  such  points  of 
the  colony  as  mav  be  judged  suitable,  in  conformity  with  the  treasury  code. 

The  vessels  which  touch  at  these  ports,  carrying  merchandise  for  importation,  and 
which,  according  to  this  contract  and  the  laws  of  the  Republic,  is  exempt  from 
duties,  can  convey  such  merchandise  to  those  points  of  the  colony  to  which  it  is 
destined  and  load  and  unload  according  to  the  formalities  of  the  law. 

Article  IV. 

A  title  in  conformity  with  the  law  shall  be  granted  to  the  contractor  for  every 
mine  which  may  be  discovered  in  the  colony. 

Article  V. 

Cyrenius  C.  Fitzgerald,  his  associates,  assigns,  or  successors,  are  bound: 

(1)  To  commence  the  works  of  colonization  within  six  months,  counting  from  the 
date  when  this  contract  is  approved  by  the  federal  council  in  conformity  with  the 
law. 

(2)  To  respect  all  private  properties  comprehended  within  the  boundaries  of  the 
concession. 

(3)  To  place  no  obstacle  of  any  nature  on  the  navigation  of  the  rivers,  streams, 
lakes,  and  lagoons,  which  shall  be  free  to  all. 

(4)  To  pay  50,000  bolivars  in  coin  for  every  46,000  kilograms  of  sarrapia  and 
cauche  which  may  be  gathered  or  exported  from  the  colony. 

(5)  To  establish  a  system  of  immigration  which  shall  be  increased  in  proportion 
to  the  growth  of  the  industries. 

(6)  To  promote  the  bringing  within  the  law  and  civilization  of  the  savage  tribes 
which  may  wander  within  the  territories  conceded. 

(7)  To  open  out  and  establish  such  ways  of  communication  as  may  be  necessary. 

(8)  To  arrange  that  the  company  of  colonization  shall  formulate  its  statutes  and 
establish  its  management  in  conformity  with  the  law  of  Venezuela,  and  submit  the 
same  to  the  approbation  of  the  Federal  Executive,  which  shall  promulgate  them. 

Article  VI. 

The  other  industrial  on  which  the  law  may  impose  transit  duties  shall  i^ay  those 
in  the  form  duly  prescribed. 

Article  VII. 

The  natural  and  industrial  productions  of  the  colony,  distinct  from  those  expressed 
in  article  5,  and  which  are  burdened  at  the  present  time  with  other  contracts,  shall 
pay  those  duties  which  the  most  favored  of  those  contracts  may  state. 

Article  VIII. 

The  Government  of  the  Republic  will  organize  the  political,  administrative,  and 
judicial  system  of  the  colony,  also  such  armed  body  of  police  as  the  contractor  or  the 
company  shall  judge  to  be  indispensable  for  the  maintenance  of  the  public  order, 
the  expense  of  the  body  of  police  to  be  borne  by  the  contractor. 


•162  KEPORT    OF   EGBERT   C.   MORRIS. 

Article  IX. 

The  (.fovernment  of  the  Republic,  for  the  term  of  twenty  years,,  oonntixig  from  the 
<iatc  of  this  ct)ntract,  exempts  the  citizens  of  the  colony  from  military  service  and 
fiMin  payment  of  imposts  or  taxes,  local  or  national,  on  tho8e  industries  which  they 
may  enjrage  in. 

Article  X. 

The  (lovernment  of  the  Republic,  if  in  its  judgment  it  shall  be  necessary,  shall 
grant  to  the  contractor,  his  associates,  assigns,  or  successors,  a  further  extension  of 
six  months  for  commencing  the  works  of  colonization. 

Article  XI. 

Any  questions  or  controversies  which  may  arise  out  of  this  contract  shall  be  decided 
in  conformity  with  the  laws  of  the  Republic  and  by  the  competent  tribunals  of  the 
Republic. 

Executed  in  duplicate,  of  one  tenor  and  to  the  same  effect,  in  Caracas,  22d  Sep- 
tember, 1883. 

8enor  Heriberto  Gordon  signs  this  as  attorney  of  Sefior  Cyrenius  C.  Fitzgerald, 
according  to  the  power  of  attorney,  a  certified  copy  of  which  is  annexed  to  thia 
document. 

[.Seal  of  the  M.  CarabaJjo, 

Mmustry  of  Fomento.]  j^-^^-^^^^  ^j  Fomenlo. 

Heriberto  Gordon. 

The  foregoing  contract  was  approved  by  the  Congress  on  May  23, 
1884,  and  a  copy  thereof,  with  the  approbation,  was  published  in  the 
Official  Gazette,  No.  3257,  on  May  29,  1884,  and  it  was  afterwards 
published  in  and  among  the  laws  and  decrees  of  Venezuela.  (Recopi- 
lacion.  Vol.  XI,  p.  98.) 

On  the  19th  of  Februar}',  1884,  an  extension  of  six  months  was 
granted  to  Fitzgerald  to  commence  the  work  of  colonization,  the  exten- 
sion to  count  from  March  22  of  that  year.     (Official  Gazette  No.  3182.) 

On  June  14,  1884,  Cyronius  C  Fitzgerald  granted  and  assigned  said 
contract  concession  to  the  Manoa  Company,  Limited,  a  corporation 
created,  organized,  and  existing  under  and  by  virtue  of  the  laws  of  the 
State  of  New  York, 

On  August  24,  1884,  one  J.  M.  Laralde,  Government  secretary,  in 
the  absence  of  the  citizen  governor  of  the  Territoiy  Delta,  certifies  to 
the  arrival  at  Pedernales  on  that  date  of  the  North  American  steamer 
Wdndell,  with  Mr.  Thomas  A.  Kelly,  superintendent  of  the  Manoa 
Company,  Limited,  C.  E.  Fitzgerald,  engineer  of  the  same  company, 
and  other  emploj^ees  thereof. 

On  September  21,  1884,  Luis  Charbone,  national  hscal  supervisor, 
temporarily  in  charge  of  the  Government  of  the  Federal  Territory 
Delta,  certified  that  the  Manoa  Compan3\  Limited,  had  commenced 
the  erection  of  a  building,  and  to  colonize  at  the  mouth  of  the  river 
Arature  on  the  10th  of  that  month,  "in  conformity  with  what  is  estab- 
lished in  the  contract  celebrated  between  the  General  Government  and 
Mr.  C.  C.  Fitzgerald  on  the  date  of  the  22d  of  September,  1883." 

On  the  14th  of  November,  1884,  the  following  certificate  was  given: 

Federal  Territory  of  the  Delta, 
Office  op  the  Government  of  the  Territory. 
I,  Manuel  M.  Gallegos,  governor  of  the  federal  Territory  of  the  Delta,  on  petition 
of  ^Ir.  Thomas  A.  Kelly,  resident  administrator  of  the  Manoa  Company,  Limited, 
domiciled  in  Brooklyn,  Phoenix  building,  16  Court  street.  United  States  of  America, 
certify:  That  on  the  24th  of  August  of  the  present  year  arrived  at  this  port  on  the 
steamer  WandeU  the  above-mentioned  Mr.  Thomas  A.  Kelly,  Mr.  C.  C.  Fitzgerald, 
engineer  of  said  company,  and  various  employees  of  the  same,  so  complying  with 


REPOKT  OF  ROBERT  C.  MORRI&.  463 

the  stipulations  of  article  5  and  of  the  prorogation  authorized  on  the  19th  of  Feb- 
ruary of  this  year  of  the  contract  celebrated  with  the  Federal  Executive  by  Mr.  C.  C. 
Fitzgerald,  of  whom  the  above-mentioned  Manoa  Company  is  the  successor. 

Pedernales,  14th  November,  1884,  twenty-first  of  the  law  and  twenty-sixth  of  the 
of  the  federation. 

(Signed)  Manuel  M.  Gallegos. 

On  the  7th  of  October,  1884,  the  following  resolution  was  issued 
from  the  ministry  of  fomento  (Official  Gazette  No.  3345): 

Resolved,  That  the  cabinet,  having  considered  the  solicitude  of  Mr.  Heriberta 
Gordon,  attorney  for  the  Manoa  Company,^  Limited,  in  which  he  asks  whether  there 
is  any  contract,  anterior  or  posterior,  which  impairs  or  limits  the  rights  which  the 
said  company  has  acquired  as  successor  to  the  contract  celebrated  with  Mr.  C.  C. 
Fitzgerald  on  the  22d  of  September,  1883,  the  President  of  the  Republic  has  seen  fit 
to  declare  that  the  Manoa  Company,  Limited,  has  perfect  right  in  accordance  with 
the  contract  to  exploit  the  products  which  are  to  be  found  within  the  limits  of  the 
lands  comprised  in  this  concession. 

Communicate  it  and  publish  it. 

For  the  National  Executive: 

(Signed)  Jacinto  Laka. 

In  May,  1885,  the  Manoa  Company,  Limited,  shipped  by  the  brig- 
Hope  a  consignment  of  about  338,068  kilograms  of  asphalt  mining  and 
refining  machinery,  material  for  houses  and  wharves,  and  a  steam 
launch  for  work  on  piers,  etc.  Under  date  of  Ma}'  23,  1885,  the  min- 
ister of  fomento  addressed  a  note  to  the  minister  of  hacienda  asking 
for  order  of  exemption  of  duties  on  shipment  per  brig  Mope  under 
the  terms  of  the  Fitzgerald  contract. 

On  March  4,  1885,  the  Manoa  Company,  b}'  C.  C.  Fitzgerald,  its 
president,  notified  the  Venezuelan  Government  that  the  agitation  of 
the  boundary  dispute  between  Great  Britain  and  Venezuela  seri- 
eush'  interf  erred  with  the  plans  of  tlie  company  in  the  development  of 
the  concession.  Fitzgerald  stated  that  he  had  been  notified  by  the 
agents  of  the  British  Government  that  the  latter  would  not  permit  the 
development  of  the  resources  of  or  the  establishment  of  industries  in 
such  part  of  the  concession  as  was  claimed  by  it  and  would  maintain 
a  force  for  the  purpose  of  hindering  tresspass  thereon.  In  view  of 
this  Fitzgerald  requested  of  the  Venezuelan  Government  a  clear  state- 
ment of  the  guarantees  to  be  expected  in  the  future  as  to  any  inter- 
ference with  tlie  company's  rights  because  of  such  invasion,  and  that 
Avhatever  the  result  of  the  negotiations  between  England  and  Vene- 
zuela, the  time  lost  thereby  by  the  company  should  not  be  counted 
against  the  company. 

On  the  1st  day  of  Januar}',  1886,  Gen.  Guzman  Blanco,  envoy  extra- 
ordinary and  minister  plenipotentiary  of  the  United  States  of  Vene- 
zuela to  various  courts  of  Europe,  on  the  one  part,  and  of  the  other 
George  Turnbull,  American  citizen,  residing  in  New  York,  115  Broad- 
way, and  then  in  London,  entered  into  a  contract  at  Nice  ad  referen- 
dum, of  which  articles  1  to  11  were  identical  with  the  articles  of  cor- 
responding numbers  in  the  Fitzgerald  contract,  with  change  of  names 
of  concessionaire.     Article  12  of  the  Turnbull  contract  is  as  follows: 

This  contract  shall  enter  into  vigor  in  case  of  the  becoming  void  through  failure  of 
compliance  within  the  term  fixed  for  this  purpose  of  the  contract  celebrated  with  Mr. 
Cyronius  C.  Fitzgerald  the  22d  of  September,  1883,  for  the  exploitation  of  the  same 
territory. 


46J:  REPORT  OF  ROBERT  C.  MORRIS. 

On  the  0th  of  September,  1886,  the  following  resolution  issuedfrom 
the  ministry  of  fomento  (Official  Gazette  No.  3852): 

Unitkd  States  ok  Venkzuela, 
JNIiNisTEK  OF  Fomento,  Direction  of  Teukitokial  Riches, 

Caracas,  Septeviber  9,  1886. 
(Twenty-third  year  of  the  law-  and  twenty-eighth  of  the  federation.) 
Resolved,  That  Seiior  Heriberto  Gordon,  with  power  from  C.  C.  Fitzgerald,  cele- 
brated on  the  22d  of  September,  1883,  with  the  National  (iovernment,  a  (contract  for 
the  exploitation  of  the  riches  existing  in  lands  of  national  property  in  the  (jrand 
Delta,  and  the  works  onght  to  have  been  begun  within  six  months  from  the  afore- 
said date.  In  spite  of  such  time  having  elapsed  without  commencing  the  works,  the 
Government  granted  him  an  extension  of  time  for  the  purpose;  and,  inasmuch  hs 
said  contractor  has  not  fulfilled  the  obligations  which  he  contracted,  as  stated  in  the 
report  of  the  director  of  national  riches,  specifying  in  reference  as  to  article  5  of  the 
contract  in  question  the  councilor  in  charge  of  the  Presidency  of  the  Republic,  having 
the  affirmative  vote  of  the  federal  council,  declares  the  insubsistency  or  annulment  of 
the  aforesaid  contract. 

Let  it  be  communicated  and  published. 
By  the  National  Executive: 

(Signed)  G.  Paz  Sandoval. 

On  the  10th  of  September,  1886,  the  following  resolution  was  issued 
from  the  ministry  of  fomento  (Official  Gazette  No.  3852) : 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  September  10,  1886. 
(Twenty-third  year  of  the  law  and  twenty-eighth  of  the  federation. ) 
Resolved,  That  by  disposition  of  the  citizen  federal  councilor  of  the  Republic,  and 
with  the  affirmative  vote  of  the  federal  council,  is  approved  the  contract  celebrated 
by  the  illustrious  American  Gen.  Guzman  Blanco,  envoy  extraordinary  and  minister 
plenipotentiary  of  Venezuela  to  various  courts  of  Europe,  with  Mr.  George  Turnbull, 
for  the  exploitation  of  the  delta  of  the  Orinoco,  of  the  following  tenor: 

Gen.  Guzman  Blanco,  envoy  extraordinary  and  minister  plenipotentiary  of  the 
United  States  of  Venezuela  to  various  courts  of  Europe,  of  the  one  part,  and  of  the 
other  George  Turnbull,  American  citizen,  residing  in  New  York,  115  Broadway,  and 
at  present  in  London,  have  settled  and  arranged  to  celebrate  the  following  contract 
ad  referendum:  (Here  follow  articles  1  to  11,  inclusive,  which  are  identical  with  the 
articles  of  corresponding  numbers  in  the  Fitzgerald  concession,  with  change  of  names 
of  concessionaire. ) 

Article  12.  This  contract  shall  go  into  effect  in  case  of  the  becoming  void  through 
failure  of  compliance  within  the  term  fixed  for  this  purpose  of  the  contract  celebrated 
with  Mr.  Cyr  nius  C.  Fitzgerald  the  22d  of  September,  1883,  for  the  exploitation  of 
the  same  territory. 

Done  three  of  one  tenor  to  a  single  effect  in  Nice,  the  1st  of  January,  1896. 

Guzman  Blanco. 
[l.  s.]  Geo.  Turnbull. 

Let  it  be  communicated  and  published. 
For  the  Federal  Executive: 

G.  Paz  Sandoval. 

The  Guzman  Blanco-Turnbull  contract  was  approved  by  act  of  Con- 
gress on  the  28th  of  April,  1887.     (Official  Gazette  No.  4048.) 

On  the  13th  of  March,  1888,  the  following  resolution  was  issued 
from  the  ministry  of  fomento  (Official  Gazette  No.  4290): 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  13th  of  March,  1888.  (24th  and  30th. ) 
Resolved,  That  Sefior  George  Turnbull  having  purchased  500  hectares  of  waste  lands, 
situated  on  both  banks  of  the  Cano  Corosimo,  Manoa  district  of  the  Federal  Territory 
Delta,  and  acquired  the  ownership,  in  conformity  with  the  law,  of  the  mine  of  iron 
denominated  Imataca,  situated  in  the  said  lands.  The  President  of  the  Republic, 
with  the  vote  of  the  Federal  council,  declares,  on  the  petition  of  the  interested  party, 


REPORT  OF  ROBERT  C.  MORRIS.  465 

-that  the  said  mine  and  lands  constitute  a  property  apart  from  the  concession  made 
to  said  Turnbull  according  to  the  contract  celebrated  on  the  1st  of  January,  1886,  and 
consequently  is  not  submitted  to  the  conditions  and  obligations  of  the  said  contract, 
but  is  governed  by  the  decree  regulating  the  law  of  mines  in  force. 

Let  it  be  communicated  and  published. 

For  the  Federal  Executive: 

Manuel  Pombona  Palacio. 

On  the  Ittth  of  March,  1888,  the  ministry  of  fomento  issued  the  fol- 
lowing document  (Official  Gazette  No.  4292): 

The  President  of  the  Republic,  with  the  vote  of  the  Federal  council:  "\Miereas,  it 
appears  that  Seiior  George  Turnbull  has  applied  to  the  Government  to  grant  definite 
title  of  ownership  of  a  mine  of  iron  which,  by  virtue  of  the  right  secured  to  him  by 
article  23  of  the  decree  regulating  the  law  of  the  matter,  he  has  accused  before  the 
governor  of  the  Federal  Territory  Delta,  which  mine  is  found  situated  in  the  Jlanoa 
district  of  the  same  territory,  1,000  meters  from  the  left  margin  of  the  Cano  Corosimo, 
starting  from  a  point  distant  2,500  meters  from  its  debouchment  in  the  Orinoco,  upon 
a  hill  caileil  Lome  del  Monte,  which  runs  east  and  west,  and  whose  geographical 
position  is  latitude  8°  29^  N.,  longitude  61°  18^  W.,  Greenwich,  accusation  which  has 
been  confirmed  bv  the  presentation  of  the  provisional  title  of  said  mine  issued  with 
date  of  the  20th  of  October  of  the  year  last  past  1)y  the  governor  of  the  territory,  and 
the  requisites  provided  by  the  decree  regulating  the  law  of  mines,  dictated  the  3d 
of  August,  1897,  having  been  fulfilled,  has  ordered  to  concede  to  Seiior  Turnbull  the 
ownership  of  tlie  said  mine  in  all  the  extension  which  belongs  to  it  and  in  respect  to 
all  the  deposits  of  iron  comprised  in  the  same,  in  conformity  to  the  denunciation  of 
law  made  before  the  said  governor.  The  present  title  shall  be  recorded  in  the 
respective  office  of  registry  and  give  right  to  the  concessionaire  and  his  successors  for 
the  term  of  ninety-nine  years  to  the  exploitation  and  possession  of  the  said  mine, 
Avith  the  restrictions  of  law,  and  without  burden  imposed  on  its  mineral  products 
which  are  found  in  the  case  determined  article  40  of  the  regulating  decree  already 
mentioned. 

Given,  signed,  sealed,  and  countersigned  in  the  Federal  palace  at  Caracas,  March 
14,  1888,  twenty-fourth  year  of  the  law^  and  thirtieth  of  the  federation. 

Hermogexes  Lopez. 


Countersigned,  the  minister  of  fomento: 


Maxuel  Tomboxa  Palacio. 


United  States  of  Venezuela, 
Ministry   of   Fomento,  Direction  of  Territorial  Riches, 

Caracas,  13th  of  March,  188S.     (24th  and  30th.) 
The  law  of  pul)lic  lands  and  the  decree  regulating  the  law  of  mines,  in  force,  hav- 
ing  been  complied  with-  in  the  accusation  made  by  I\Ir.  George  Turnbull  of  500 
hectares  of  public  lands  for  use  in  the  exploitation  of  the  mine  of  iron  whic^h  he 
possesses,  denominated  Imataca,  situated  on  both  margins  of  the  Cano  Corosimo,  in 
the  District  Manoa  of  the  Federal  Territory  Delta,  the  President  of  the  Republic, 
with  the  affirmative  vote  of  the  federal  council,  has  disposed  that  the  correspond- 
ing title  of  adjudication  shall  be  issued. 
Let  it  be  communicated  and  published. 
For  the  Federal  Executive. 

Manuel  Fombona  Falacio. 

On  the  14th  of  March,  1888,  the  ministrj-  of  fomento  issued  the 
followino-  document: 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches. 

Having  observed  the  formalities  prescribed  in  the  law  of  June,  1882,  and  in  the 
decree  regulating  the  law  of  mines,  in  force,  tlie  National  Executive,  with  the 
affirmative  vote  of  the  federal  council,  has  declared  the  ailjudication,  with  date  of 
the  .'M  instant,  in  favor  of  the  citizen  ( ieorge  Turnbull,  of  500  hectares  of  waste  lands 
which  form  the  superficies  of  the  mine  of  iron  wiiich  said  Sefior  George  Turnbull 
possesses,  denominated  Imataca;  which  lands  he  acquires  for  uses  of  the  exploita- 
tion of  said  mine,  and  are  situated  in  the  jurisdiction  of  the  :\Ianoa  District  of  the 
Federal  Territory  Delta.     The  land  surveyed  is  bounded  on  its  four  sides  by  lands  of 

S.  Doc.  317,  58-2 :iO 


466  REPORT  OF  ROBERT  C.  MORRIS. 

national  property,  coni'odod  by  contract  to  Scfior  (feorgt^  Turnbull.  The  500  hec- 
tares surveyed  are  divided  in  two  sections — 100  hectares  to  the  north  of  the  stream 
Corosimo,  which  conunences  near  the  village  of  INlanoa  and  which  comprise  part  of 
a  liill  which  runs  east  and  west,  and  400  hei'tares  to  the  south  of  said  stream, 
including  part  of  the  Imataca  range,  denominated  "Loma  sel  Yonte,"  where  is 
situated  the  mine  of  iron  owned  by  Senor  Turnlnill.  Tiie  adjudicatiim  has  been 
made  for  the  price  of  7,100  l)olivars  iu  coin,  eciuivulent  to  20,000  bolivars  of  the  5  per 
cent  national  cnnsolidated  debt,  which  the  purchaser  has  made  over  to  the  office  of 
the  board  of  pul)lic  credit;  and  the  Government  having  disposed  that  the  title  of 
ownership  of  said  lands  be  issued  the  subscriber,  the  minister  of  fomento  declares 
in  the  nauie  of  the  United  States  of  Venezuela  that  l)y  virtue  of  the  comi)leted  sale 
the  dominion  and  ownership  of  said  lands  is  from  now  transferred  in  favor  of  the 
purchaser,  Senor  George  Turnbull,  with  the  respective  declarations  expressed  in 
artii'les  6,  7,  and  8  of  the  law  cited,  whic-h  in  their  letter  and  contents  authorize  the 
])resent  adjudication,  and  whose  terms  must  be  considered  as  clauses  decisive  on  el 
particular. 

Caracas,  14th  of  March,  1888,  twenty-fourth  year  of  the  law  and  thirtieth  of  the 
Federation. 

Manuel  FoiMbona  Falacios. 

On  the  28th  of  June,  1888,  the  following  resolution  was  issued  from, 
the  ministry  of  fomento  (Official  Gazette  No.  4382): 

United  States  of  Venezuela, 
Ministry  op  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  28th  of  June,  1888.     (25th  and  30th. ) 
Resolved,  The  requirements  of  the  decree  regulating  the  law  of  mines  in  force  hav- 
ing been  complied  with  by  Sefior  George  Turnbull  in  the  accusation  of  the  mine  of 
asphalt  which  he  has  discovered  in  the  District  Guzman  Blanco  of  the  Federal  Terri- 
tory Delta,  on  the  borders  of  the  Pedarnales  Channel,  on  the  island  of  the  same  name ; 
and  having  been  presented  the  provisional  title  of  ownership  of  the  mine  issued 
by  the  governor  of  aforesaid  Federal  Territory  Delta,  in  conformity  with  article  9  of 
the  aforesaid  decree,  the  President  of  the  Republic,  with  the  vote  of  the  federal 
council,  resolves:   That  the  definitive  title  of  ownership  to  the  above-cited  mine  of 
asphalt,  for  ninety-nine  years,  shall  be  issued  in  favor  of  Mr.  George  Turnbull. 
Let  it  be  communicated  and  liublished. 
For  the  Federal  Executive. 

Coronado. 

On  the  30th  day  of  June,  1888,  the  following-  document  was  issued 
by  the  ministry  of  fomento: 

The  President  of  the  Republic,  with  the  vote  of  the  federal  council:  Whereas  it 
appears  that  Seiior  George  Turnbull  has  petitioned  the  Government  to  issue  definite 
title  of  ownership  of  a  mine  of  asphalt  which,  by  virtue  of  the  right  conceded  by 
article  23  of  the  decree  regulating  the  law  of  the  matter,  he  has  accused  before  the 
governor  of  the  Federal  Territory  Delta,  which  mine  is  situated  in  the  District  Guz- 
man Blanco  of  the  Territory  mentioned,  on  the  shores  of  the  stream  of  Pedernales, 
on  the  island  of  the  same  name,  upon  a  visible  extension  of  1,300  meters  in  length 
bv  500  in  width,  which  runs  northeast  to  southwest,  and  whose  geographical  position 
is  as  follows:  Latitude  10°  11^  7'^  N.,  longitude  62°  12^  24^^  W.  of  the  meridian  of 
Greenwich;  which  accusation  he  has  proved  by  the  presentation  of  the  provisional 
title  to  said  mine,  issued  under  date  of  the  9th  of  January  of  the  current  year  by  the 
governor  of  the  Territory;  and  the  requisites  provided  by  the  decree  regulating  the 
law  of  mines  of  August  3,  1887,  having  been  fulfilled,  has  disposed  to  concede  to 
Seiior  George  Turnbull  the  ownership  of  the  said  mine  in  all  the  extensions  which 
belong  to  it  and  in  respect  of  all  the  deposits  comprised  in  the  same,  in  conformity 
with  the  denunciation  of  law  made  before  the  said  governor. 

The  present  title  shall  be  registered  in  the  respective  office  of  registry,  and  give 
right  to  the  concessionaire  and  to  his  successors,  for  the  term  of  ninety-nine  years, 
to  the  exploitation  and  profit  of  the  said  mine,  and  without  that  burden  on  its  prod- 
ucts imposed  on  any  mine  by  reason  of  being  in  the  case  determined  by  article  40  of  the 
regulating  decree  already  mentioned. 

Given,  signed,  sealed,  and  countersigned  in  the  Federal  Palace  in  Caracas,  the  30th 
of  June,  1888,  twenty-fifth  year  of  the  law  and  thirtieth  of  the  Federation. 

Hermogenes  Lopez. 

Countersigned,  the  Minister  of  Fomento : 

Vicente  Coronado. 


REPORT  OF    ROBERT  C.  MORRIS.  467 

On  the  3d  day  of  October,  1888,  the  ministiy  of  fomento  issued  the 
following  document: 

The  United  States  of  Vexezitela, 
Ministry  of  Fomexto,  Direction  of  Territorial  Riches. 

The  formalities  prescribed  in  the  law  of  June  2,  1882,  concerning  the  matter  hav- 
ing been  observed,  the  National  Executive,  with  the  affirmative  vote  of  the  federal 
council,  has  declared  the  adjudication  on  this  date  in  favor  of  Senor  George  Turnbull 
of  200  hectares  of  public  lands  destined  for  the  uses  of  the  exploitation  of  a  mine  of 
asphalt  which  the  purchaser  possesses,  situated  in  the  District  Guzman  Blanco  of 
the  Federal  Territory  Delta,  in  the  island  of  Pedernales,  and  whose  boundaries  are: 
Upon  the  north,  groves  of  mangrove  trees  and  the  mine  of  asphalt  which  Senor 
Turnbull  actually  exploits;  upon  the  south,  uncultivated  waste  lands  and  the  lake 
denominated  Angosturita;  upon  the  east,  plains  and  groves  of  mangroves;  upon  the 
west,  agricultural  plantations  pertaining  to  various  residents  of  Pedernales,  and  also 
some  groves  of  mangroves.  The  adjudication  has  been  made  for  the  price  of  2,970 
bolivars  in  coin,  equivalent  to  8,000  bolivars  of  the  5  per  cent  national  consolidated 
debt,  which  the  purcha.'^er  has  made  over  in  the  office  of  public  credit;  and  the  Gov- 
ernment having  disposed  that  the  title  of  ownership  of  said  lands  shall  be  issued,  the 
undersigned,  the  minister  of  fomento,  declares  in  the  name  of  the  United  States  of 
Venezuela  that  by  virtue  of  the  completed  sale  the  dominion  and  ownership  of  said 
lands  is  henceforth  transferred  in  favor  of  the  purchaser,  Seiior  George  Turnljull,  with 
the  respective  declarations  expressed  in  articles  6,  7,  and  8  of  the  law  cited,  which  in 
their  letter  and  contents  authorized  the  present  adjudication,  and  whose  terms  must 
be  considered  as  clauses  decisive  in  the  matter. 

Caracas,  October  3,  1888,  twenty-fifth  year  of  the  law,  and  thirtieth  of  the  Federa- 
tion. 

Yicixte  Coroxado. 

On  the  18th  of  June,  1895,  the  following  resolution  was  issued  by 
the  ministr}'  of  fomento  (Official  Gazette,  No.  6433): 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  June  18,  1895.     (64th  and  37th. ) 

Resolved,  On  April  28,  1887,  the  National  Congress  approved  the  contract  ad  refer- 
endum which  was  made  in  Nice  the  1st  day  of  January,  1886,  by  Gen.  Guzman 
Blanco,  envoy  extraordinary  and  plenipotentiary  minister  to  several  courts  of  Europe, 
and  .the  North  American  citizen,  George  Turnbull.  The  Government  had  under- 
taken in  that  contract  to  grant  for  a  term  of  ninety-nine  years  to  the  aforesaid  George 
Turnbull  the  right  to  exploit  the  riches  found  in  a  large  portion  of  the  Grand  Delta 
of  the  Orinoco  and  an  exterior  portion  of  territory  in  Guyana,  lower  Orinoco,  includ- 
ing the  islands  of  Tortola  and  Aragua,  together  with  all  the  francliises  in  connection 
with  the  colonization,  exploitation,  and  development  of  the  aforesaid  territories. 
The  National  p]xecutive  on  its  part  has  complied  with  all  the  ol:)]igations  incurred 
upon  as  per  the  contract,  and  it  being  evident  that  the  cessionary  citizen,  George 
Turnbull,  during  the  eight  years  elapsed  since  the  celebration  of  the  said  contract, 
excepting  some  steps  taken  for  the  exclusive  benefit  of  his  own  convenience,  has  not 
complied  with  any  of  the  oljligations  stipulated,  neither  has  he  exercised  any  act  in 
favor  of  the  interests  of  the  nation,  nor  by  any  means  profitable  to  the  development 
of  the  natural  riches  of  the  regions  that  were  the  object  of  the  concession;  the  Pres- 
ident of  the  Republic  considering  as  injurious  and  fruitless  to  the  nation  the  conces- 
sion granted  to  the  citizen,  George  Turnbull,  has  decided  to  declare  the  annulment 
of  the  contract  ad  referendum  signed  at  Nice  the  1st  day  of  Jaiuiary,  18S6,  which 
was  approved  by  the  Executive  of  the  Republic  on  September  10  of  the  same  year, 
comprising  in  the  same  case  of  nullity  and  insuksistency  of  the  aforesaid  contract  the 
concession  of  the  "Imataca"  iron  mine,  definitive  title  to  which  was  issued  March 
13,  1888,  an<l  the  concession  of  the  asphalt  mine  situated  in  the  island  of  Pedernales, 
the  definitive  title  of  which  was  issued  June  28  of  the.  same  year,  as  well  as  any 
other  rights,  titles,  or  concessions  deriving  from  the  said  contract. 

Let  this  be  communicated  and  published. 

By  the  National  Executive. 

(Signed)  Jacinto  Lara. 


408  REPORT    OK    ROIiKRT    C.    MORRIS. 

On  the  same  day,  to  wit,  the  18th  day  of  June,  1895,  the  ministry  of 
fomeuto  issued  the  foUowino-  resohition  (Official  Gazette,  No.  6433): 

United  States  of  Venezuela, 
imlmstky  ok  fomento,  dlkectiox  ok  territorial  rlches, 

Caracas,  Jane  IS,  1895.     (84th  and  37th.) 

Resolved,  After  havino;  considered  in  the  cabinet  the  petition  addressed  to  this  min- 
istry by  the  IVIanoa  Company  (Limited ) ,  which  among  other  things,  sohcits  the  ratifi- 
cation, confirmation,  and  execution  in  its  favor  of  all  the  rights  and  privileges 
conceded  to  Cvrenius  C.  Fitzgerald  on  the  22d  day  of  September,  1883,  by  the  con- 
tract declared  "insubsistent  on  the  9th  day  of  September,  1886;  the  President  of  the 
Eei)ublic  after  examination  of  the  same  has  declared  the  caducity,  for  reason  of  want 
of  faithful  compliance  with  its  obligations  and  stipulations  of  the  concession  of 
George  Turnbull,  and  has  substituted  therefor  in  the  same  rights  and  privileges  the 
aforesaid  contract,  and  has  seen  fit  to  dispose  and  authorize  the  said  Manoa  Com- 
pany (Limited),  within  six  months,  reckoning  from  the  date  of  this  resolution,  to 
renew  its  works  of  exploitation,  in  order  to  the  greater  development  of  the  natural 
riches  of  the  territories  embraced  in  said  concession;  hereby  confirming  it  in  all  the 
rights  stipulated  and  granted  to  said  Fitzgerald  by  the  said  contract  of  September 
22,  1883.  And  the  said  Manoa  Company  (Limited),  shall  report  to  the  National  Exec- 
utive from  time  to  time  through  the  organ  of  this  ministry  all  of  the  works  carried 
on  by  it  in  execution  of  said  contract,  in  order  that  the  Government  may  be  enabled 
to  judge  of  its  compliance  with  the  obligations  of  said  contract  in  conformity  with 
the  spirit  and  the  magnitude  of  its  stipulations. 

Communicate  and  publish. 

By  the  National  Executive. 

(Signed)  Jacinto  Lara. 

On  the  10th  of  Jul}^  1895,  a  resolution  was  issued  by  the  ministry 
of  fomento  as  follows  (Official  Gazette,  No.  6451) : 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  July  10,  1895.     (85th  and  37th.) 

Resolri'd,  After  having  considered  in  the  council  of  ministers  the  petition  addressed 
to  this  office  by  the  citizen  George  Stelling,  vice-president  of  the  board  of  directors 
of  the  National  Anoninious  Company,  called  "Mines  of  Pederales,"  requesting  the 
modification  of  the  resolution  issued  on  June  19  last,  by  which  the  general  concession 
granted  to  the  citizen  George  Turnbull  was  declared  null,  in  order  to  except  from 
the  said  annulment  the  mine  of  Pedernales  and  the  200  hectares  of  public  lands 
belonging  to  the  aforesaid  company,  the  President  of  the  Republic,  after  studying 
the  documents  filed  by  the  the  petitioner  and  taking  into  consideration: 

First.  That  in  accordance  with  article  28  of  the  mining  law  under  which  the 
definitive  title  to  the  asphalt  mine  of  the  Pedernales  Island  was  granted,  said  title 
"can  be  transferred  to  any  person  able  to  contract." 

Second.  That  as  per  article  50  of  the  same  laws  and  the  documents  filed  by  the 
petitioner,  on  November  19,  1890,  date  on  which  citizen  George  Turnbull  transferred 
to  the  National  Company  "Mines  of  Pedernales"  the  above  referred  mining  conces- 
sion and  the  200  hectares  of  ]Hiblic  lands  needed  for  its  exploitation,  the  definitive 
title  issued  had  not  been  voided  or  annulled  inasmuch  as  the  cessionary  had  been 
exploiting  the  mine  therein  mentioned;  and  finally,  that  the  National  Company 
"Mines  of  Pedernales"  obtained  the  property  through  a  good  title,  has  been  possess- 
ing in  good  faith  and  has  been  and  is  now  exploiting  the  said  asphalt  mine,  as  per 
evidence  shown  in  the  documents  which  were  filed,  so  that  respecting  the  said  mine 
the  failure  of  fulfillment  on  the  part  of  the  concessionary — upon  which  the  said  reso- 
lution of  June  10  of  the  present  year  is  based — is  not  applicable;  does  hereby  resolve 
in  equity  and  justice  that  the  said  resolution  of  June  19  last,  in  which  the  contract 
celebrated  with  the  citizen  George  Turnbull  was  declared  null,  does  not  in  any  way 
affect  the  rights,  legitimately  acquired  of  the  asphalt  mine  of  the  Pedernales  Island, 
nor  the  200  hectares  of  land  destined  to  its  exploitation  by  the  National  Anonimous 
Company,  called  "Mines  of  Pedernales,"  which  company  shall,  consequently,  be  at 
liberty  to  go  on  with  the  works  of  the  aforesaid  mine  and  the  200  hectares  of  public 
land  referred  to. 

(Signed)  Jacinto  Lara. 


REPORT  OF  ROBERT  C.  MORRIS.  469 

On  November  20,  1896,  the  following  resolution  was  issued  from  the 
ministry  of  fomento  (OflBcial  Gazette,  Xo.  6877): 

United  States  of  Venezuela, 
Ministry  of  Fomento,  Direction  of  Territorial  Riches, 

Caracas,  Xotember  20,  1896.     (86th  and  38th. ) 

Resolved,  Having  considered  at  the  council  of  ministers  the  petition  addressed  to 
this  department  by  citizen  George  Turnbull,  therein  proving — as  per  the  documents 
attached  thereto — that  the  said  George  Turnbull  lawfully  obtained  the  definitive  title 
to  the  iron  mine  called  '"Imataca"  situate  on  both  banks  of  the  Cano  Corosimo  of 
the  Manoa  district  of  the  Federal  Territory  Delta;  that  he  complied  with  the  require- 
ments of  the  land  laws  and  jiaid  for  the  price  of  the  adjudgment  of  500  hectares  of 
land  which  comprise  the  superficial  area  of  said  mine;  that  by  virtue  of  (Teorge 
Turnbull  having  acquired  the  aforesaid  mine  and  lands,  the  National  Executive  by 
resolution  of  March  13,  1886,  declared  that  said  mine  and  lands  constitute  a  separate 
property  from  the  Manoa  concession  granted  to  the  above-mentioned  Turnbull  as 
per  contract  made  January  1,  1886,  not  being  subject  therefor  to  the  obligations  of 
the  aforesaid  contract,  but  which  will  be  ruled  by  the  decrees  regulating  the  mining 
laws;  that  it  is  also  proved  that  the  above-mentioned  Turnbull  has  maintained  the 
aforesaid  mine  in  exploitation,  according  to  the  legal  regulation,  and  finally,  that  at 
the  Ciudad  Bolivar  custom-house  the  mining  taxes  were  paid,  corresponding  to  the 
500  hectares  which  formed  said  mining  concession;  the  citizen  President  of  the 
Republic  has  thought  fit  to  decide  that  the  resolution  of  this  department  of  June  18, 
1895,  published  in  the  Official  Gazette  of  June  19  of  the  same  year,  marked  No.  6433, 
declaring  the  annulment  of  the  contract  made  January  1,  1886,  with  the  above- 
mentioned  Turnbull  for  the  exploitation  of  a  portion  of  the  Delta  of  the  Orinoco, 
does  in  no  way  affect  the  rights  legitimately  acquired  by  him  to  the  "Imataca"  iron 
mine,  which  is  hereby  excluded  from  the  aforesaid  resolution,  together  with  the  500 
hectares  of  land  forming  its  superficial  area,  and,  consequently,  the  citizen  George 
Turnbull  remains  authorized  to  continue  the  exploiting  of  the  mine  and  public  lands 
referred  to. 

Let  it  be  notified  and  published. 

(Signed)  The  National  Executive. 

By  Manuel  A.  Diaz. 

On  the  «ame  day  the  following  resolution  was  issued  b^^  the  minister 
of  fomento  (Official  Gazette,  No.  6877): 

♦  United  States  of  Venezuela, 

,  Ministry  of  Fomento,  Direction  op  Territorial  Riches, 

Caracas,  November  20,  1896.     (86th  and  38th. ) 

Resolved,  Having  considered  at  the  council  of  ministers  the  petitions  addressed  to 
this  department  by  the  citizens  J.  A.  Radciffe,  J.  A.  Bowman,  James  P.  Elmer, 
Francisco  de  P.  Suarez,  Luis  Ari.stigueta  Orillet,  George  N.  Baxter,  and  Ellis  Grell,  in 
behalf  and  by  authority  of  the  companies  called  "Manoa  Company,  Limited," 
"Orinoco  Mining  Company,"  and  "Orinoco  Company,  Limited,"  as  well  as  to 
reports  and  other  df)cuments  filed;  the  citizen  president  of  the  Republic,  Avishing  to 
put  an  end  to  the  difficulties  which  have  presented  themselves  jjreventing  the  exjjloita- 
tion  of  the  Delta  of  "The  Orinoco  Concession,"  otherwise  known  as  "The  Manoa," 
referred  to  in  the  reso  utions  of  June  18,  1895,  has  thought  fit  to  recognize  as  valid 
the  transfer  made  Ijy  the  Manoa  Company,  Limited,  to  the  Orinoco  Company, 
Limited,  of  all  its  rights  and  title  to  and  in  thcaforesaid  concessions  with  the  excep- 
tion of  the  Imataca  inm  mine,  situate  on  both  banks  of  the  Cano  Corosimo,  in  the 
Manoa  district  of  the  old  Federal  Territory  Delta  and  the  500  liectaresof  public  lands 
which  comprises  its  superficial  area,  as  well  as  the  asphalt  mine  called  "Minasde 
Pedernales,"  situate  in  the  island  of  the  same  name,  together  with  the  200  liectares 
destined  for  its  exploitation.  lie  acknowledges,  likewise,  as  valid  the  work  and  all 
acts  of  the  Orinoco  Company,  Limited  (successor  to  the  ^Manoa  Company,  Limited  ), 
done  and  jfcrformed  by  tliem  in  fulfillment  of  the  terms  of  the  resolution  of  June  IS, 
1895;  and  the  Presiileiit  of  the  Republic  disfxjses  that  the  said  company  be  granted 
the  exemption  from  payment  of  custom-house  duties  on  machinery  and  other  effects 
imported  through  the  Ciudad  Bolivar  custom-house  destined  to  the  works  of  said 
conces.sion;  and,  finally,  that  all  the  facilities  be  granted  to  the  interested  ])arties  for 
the  aforesaid  exploitation,  providing  such  facilities  be  not  in  opposition  to  the  laws 
and  resolutions  of  Ww.  Rejiublic  in  force. 

Let  it  be  notified  and  published. 

The  National  Executive, 
By  Manuel  A.  Diaz. 


470  REPORT  OF    ROBERT  0.  MORRIS. 

On  the  lOtli  of  October.  liMlo,  tho  followino-  resolution  was  issued 
by  the  ministry  of  fouiento.(Ottieial  (nizette.  No.  8053): 

United  States  of  Venezuela, 
ministuy  ov  fdmknto,  direction  of  territorial  riches, 

('(iracax,  October  10,  1900.     (90th  and  42d.) 

Resolved,  Conpideriiijx  that  the  contract  cele1)rated  September  22,  1888,  with 
Cyivniuy  O.  Fitzgerald,  and  on  which  tlie  Orinoco  Coin|)any,  Limited,  now  bases  its 
rights  for  the  exploitation  of  the  natural  riches  in  the  Delta  of  the  Orinoco  and 
•colonization  of  the  land  c-onceded  has  now  no  legal  existence,  for  that  it  was  declared 
void  for  failure  of  performance  of  what  was  in  it  stipulated;  that  in  April,  1*^''^7,  the 
National  Congress  apj^roved  a  contract  celebrated  with  the  North  American  citizen, 
(ieorge  Turn  bull,  in  the  same  regions  and  with  the  same  clauses  and  in  all  e(]ual  with 
tliat  of  the  Manoa Company,  Limited  fcessionaireof  Fitzgerald),  declared  void,  which 
Avas  also  for  the  same  clauses  declared  in  caducity  on  the  bsth  of  June,  1S95;  and  that 
•on  the  same  day  of  the  said  month  and  year  this  otticeissuedan  Executive  resolution 
restoring  to  the  ]\Iaona  Company,  Limited,  the  rights  and  privileges  conceded  by  the 
original  contract  with  Fitzgerald  in  1883;  and 

Considering  (first)  the  contract  celeljrated  with  C.  O.  Fitzgerald  having  been 
declared  void  for  failure  of  compliance  with  article  5,  this  can  not  be  considered  in 
vigor  without  the  intervention  of  a  new  contract  approved  by  the  National  Congress; 
second,  that  the  legislature  of  the  State  of  Bolivar,  in  its  ordinary  session  of  1899, 
adopted  a  joint  memorial  to  the  National  Congress,  declaring  that  the  company  cession- 
aire  of  the  contract  celebrated  with  Fitzgerald  had  not  complied  in  its  fourteen  years 
of  existence  with  any  of  the  clauses  established  in  article  5  of  the  said  contract,  and 
that  this  interferes  with  the  interests  of  the  Venezuelans  for  exploiting  the  natural 
products  of  that  region  of  the  Republic;  and,  third,  that  according  to  the  notes  and 
reports  forwarded  to  this  office  by  the  authorities  of  the  different  places  of  the  region 
to  which  refers  the  concessions  already  mentioned,  all  concur  in  the  failure  of  per- 
formance of  the  same  and  of  the  palpable  evils  which  it  occasions,  as  well  to  the 
national  treasury  as  to  the  individual  industries: 

The  supreme  chief  of  the  Republic  has  seen  fit  to  dispose  that  the  mentioned 
contracts  are  declared  insubsistent. 

Let  it  be  communicated  and  published. 

For  the  National  Executive. 

Remon  Ayala. 

The  following  provisions  of  the  constitution  of  Venezuela,  adopted 
in  1881,  and  in  force  on  September  22,  1883,  are  pertinent  to  the  con- 
sideration of  these  claims.  Similar  provisions  are  found  in  the  later 
constitutions  of  the  Republic. 

By  paragraph  15,  article  13,  of  this  constitution,  the  States  of  the 
Federation  agree  to  cede  to  the  Government  of  the  Federation  the  admin- 
istrations of  the  mines,  public  lands,  and  salt  deposits,  to  the  end  that 
the  former  shall  ])e  governed  by  a  system  of  uniform  exploitation,  and 
the  latter  for  the  benefit  of  the  people. 

Title  5,  section  1,  article  06,  provides  in  relation  to  the  powers  of 
the  Executive: 

Besides  the  foregoing  powers  of  the  President  of  the  United  States  of  Venezuela 
he,  with  the  deliberative  vote  of  the  federal  council,  shall  exercise  (inter  alia)  the 
following: 

Par.  2a.  Administer  the  public  lands,  the  mines,  and  the  salt  deposits  of  the  States 
by  delegation  of  an  authority  from  the  latter. 

Par.  6a.  Celebrate  contracts  of  national  interest  in  accordance  with  the  laws,  and 
submit  the  same  to  the  legislature  for  its  approval. 

Title  5,  section  2,  article  69,  provides  in  relation  to  the  ministers  as 
follows: 

The  ministers  are  the  natural  and  public  organs  of  the  President  of  the  United 
States  of  Venezuela.  All  his  acts  shall  be  subscribed  by  them,  without  which  requisite 
they  shall  not  be  complied  with  nor  executed  by  the  authorities,  by  employees,  or 
by  iprivate  individuals. 


KEPOKT  OF  ROBERT  C.  MORRIS.  471 

Among  the  powers  of  the  Congress  enumerated  in  title  4,  section  5, 
article  43,  is  the  following  (par.  17) : 

To  approve  or  reject  the  contracts  concerning  national  works  which  the  President 
with  the  approval  of  the  federal  council  shall  make,  without  which  requisite  they 
shall  not  become  effective. 

Of  the  high  federal  court  the  constitution  in  title  6,  section  2,  of 
article  80,  provides  (par.  9a)  that  it  shall- — 

Take  jurisdiction  of  the  controversies  which  result  from  the  contracts  or  negotia- 
tions which  the  President  of  the  Federation  may  celebrate. 

The  act  of  Congress  of  May  7,  1881,  providing  for  the  organization 
of  the  high  federal  court,  prescribes  in  regard  to  the  said  court  that  it 
shall  have  the  power  (inter  alia) : 

To  take  jurisdiction  in  the  first  and  sole  (unica)  instance: 

First  of  the  judicial  matters  comprised  in  the  attributions  1,  2,  .3,  4,  and  9  of  article 
80  of  the  constitution  and  in  No.  30  of  article  13. 

These  three  claims  are  so  intimately  related  in  respect  of  the  facts 
and  circumstances  out  of  which  they  arise  that  they  are  herein  con- 
sidered together. 

The  Fitzgerald  contract  of  September  22,  1883,  was  executed  in 
strict  conformity  Avith  constitutional  requirements.  It  was  signed  on 
behalf  of  the  Government  by  the  minister  of  fomento  "  duly  authorized 
by  the  President  of  the  Republic.''  It  was  approved  by  the  federal 
council.  It  was  submitted  for  approval  to  the  National  Legislature, 
and  was  by  it  approved  on  the  23d  day  of  May,  1884,  and  it  received 
the  formal  sanction  and  signature  of  the  President  on  May  27,  1884. 
It  was  published  in  the  Otticial  Gazette,  No.  32.57.  on  May  29,  1884. 

The  instrument  thus  solemnl}^  executed  constituted  a  bilateral  con- 
tract, giving  rise,  as  between  the  parties  thereto,  to  certain  mutual 
rights  and  obligations.  The  Government  of  Venezuela  granted  to 
Fitzgerald,  his  associates,  assigns  and  successors,  for  the  term  of  ninety- 
nine  years  reckoning  from  the  date  of  the  contract,  the  exclusive  right 
to  develop  the  resources  of  the  territories  designated;  and,  for  an  equal 
term  of  years,  the  exclusive  right  of  establishing  a  colony  for  the  pur- 
pose of  developing  the  resources  already  known  to  exist,  and  those  not 
j'^et  developed  of  the  same  region,  including  asphalt  and  coal.  The 
Government  agreed  that  a  title  in  conformity  with  the  law  should  be 
granted  to  the  contractor  (Fitzgerald)  for  every  mine  which  might  be 
discovered  in  the  colony.  Fitzgerald  agreed  to  perform  the  stipula- 
tions of  Article  V  in  respect  to  exploitation  and  colonization  therein  set 
forth.  The  parties  mutually  agreed  that  any  questions  or  controversies 
which  might  arise  out  of  the  contract  should  be  decided  in  conformity 
with  the  laws  of  the  Republic  and  by  its  competent  tribunals.  The 
constitution  of  the  Republic  provided  that  the  high  federal  court  had 
jurisdiction  of  the  controversies  which  might  result  from  the  contracts 
celebrated  ))y  the  President. 

Fitzgerald  assigned  the  contract-concession  to  the  Manoa  Company, 
Limited,  on  June  14,  1884.  The  evidence  shows  tliat  the  company, 
within  the  time  stipulated  in  the  contract  and  its  prorogation  of  Fel)- 
ruary  19,  1S84,  coimnenced  the  work  of  exploitation  and  colonization. 
It  proceeded  with  the  work  until,  in  th<i  spi'ingof  1885,  it  encountered 
serious  difficulties  resulting  from  a  domestic  revolution  headed  by 
General  Bulgar,  and  from  the  aggression  of  the  British  Government 


472  REPORT  OF  ROBERT  C.  MORRIS. 

apt)!!  tlio  torritorit's  iiu-luded  within   the  concession.     The  company 
duly  notified  the  \"enezuelan  Government  of  these  difficulties. 

In  December,  1885,  one  dreorge  Turnbull,  a  citizen  of  the  United 
States,  entered  into  negotiations  with  Gen,  Guzman  Blanco,  ex-Pre.si- 
dentof  Venezuela,  and  at  that  time  occupj'ing  the  position  of  envoy 
extraordinary  and  minister  plenipotentiary  of  Venezuela  to  various 
courts  of  P^irope;  and  those  negotiations  resulted  in  the  signing  at 
Nice,  on  January  1,  188G,  of  an  ad  referendum  contract  substantially" 
of  the  same  purport  and  tenor  as  the  Fitzgerald  contract;  granting  to 
Turnbull  the  same  rights  and  privileges  in  the  territories  designated 
as  had  previously  been  conceded  to  Fitzgerald  and  his  assigns;  and 
containing  the  provision  that  it  should  become  efi'ective  in  case  of  the 
becoming  void  through  failure  of  compliance  within  the  term  fixed  for 
this  purpose  of  the  Fitzgerald  contract  for  the  exploitation  of  the  same 
territor3\ 

The  time  fixed  for  beginning  the  work  of  colonization  in  the  Fitz- 
gerald contract  expired  on  September  22,  1884,  prior  to  the  Guzman 
Blanco-TurnbuU  agreement,  and  no  evidence  is  presented  here  of  any 
complaint  by  the  Government  of  Venezuela  of  nonfulfillment  with  its 
terms  on  the  part  of  the  concessionaires  prior  to  that  date.  Nor  is  any 
evidence  presented  of  authority  on  the  part  of  Guzman  Blanco  in  his 
capacity  as  envoy  extraordinary  and  minister  plenipotentiary  to  vari- 
ous courts  of  Europe  to  enter  into  the  contract  with  Turnbull  for  a 
concession  for  the  public  lands  and  mines — that  power  being  b}^  the 
constitutional  provisions  above  quoted  vested  in  the  President  of  the 
Republic.  The  article  recognizes  the  then  existence  and  validity  of 
the  Fitzgerald  concession.  But  in  view  of  the  well-known  dominant 
influence  of  Guzman  Blanco  in  Venezuelan  afl'airs  at  the  time,  and  the 
practical  certaint}^  of  its  ratification,  the  obvious  effect  of  the  Turnbull 
agreement  was  to  work  grave  injury  to  the  interests  and  credit  of  the 
Manoa  Company,  Limited. 

On  the  9th  of  September,  1886,  by  Executive  resolution  issued 
through  the  ministry  of  fomento,  "the  councillor  in  charge  of  the 
presidency,  having  the  affirmative  vote  of  the  federal  council,"  declared 
the  insubsistency  or  annulment  of  the  Fitzgerald  concession  upon  the 
ground  that  the  contractor  had  not  fulfilled  the  obligations  of  the  con- 
tract, as  stated  in  the  report  of  the  Director  of  the  National  Riches, 
specificall}^  referring  to  the  provisions  of  Article  V  thereof.  One  day 
later  an  Executive  resolution  declared  the  approval  of  the  Guzman 
Blanco-Turnbull  contract  of  January  1,  1886;  and  said  contract  was 
approved  by  Congress  on  April  28,  1887. 

It  is  perfectly  evident  that  the  question  whether  or  not  the  Manoa 
Company,  Limited,  had  fulfilled  the  obligations  of  the  contract,  or  any 
controversy  as  to  that  fact,  was  a  question  or  controversy  arising  out 
of  the  contract,  determinable,  according  to  law  and  the  agreement  of 
the  parties,  only  by  the  competent  tribunals  of  the  Republic.  The 
Government  of  Venezuela,  being  a  party  to  the  contract,  was  not  com- 
petent to  decide  such  a  controversy.  The  jurisprudence  of  civilized 
states  and  the  principles  of  natural  justice  do  not  allow  one  party  to  a 
contract  to  pass  judgment  upon  the  other.  If  the  Government  had 
any  reason  to  believe  that  the  grantees  of  the  concession  "had,  by 
misuser  or  nonuser  thereof,  forfeited  their  rights,  then  it  should  have 
itself  appealed  to  the  proper  tribunals  against  the  said  grantees,  and 


REPORT    OF    ROBERT    C.    .JORRIS.  473 

there,  by  due  process  of  judicial  proceedings,  involving  notice,  full 
opportunity  to  be  heard,  consideration  and  solemn  judgment,  have 
invoked  and  secured  the  remedy  sought."  Nemo  debet  esse  judex  in 
propia  sua  causa. 

Moreover,  the  Executive  resolution  of  September  9,  1886,  annulling 
the  Fitzgerald  contract,  was  an  illegal  assumption  of  power.  Under 
the  constitution  of  Venezuela  the  Executive  was  clothed  with  no  such 
prerogative.  Jurisdiction  of  controversies  arising  ovit  of  contracts 
celebrated  b}-  the  President  w^s  vested  solely  in  the  high  federal  court. 
(Par.  9,  art.' 80  Const,  and  Law  of  May  7,  1881.) 

The  decree,  in  the  absence  of  legal  authoritj^  in  the  Executive  to 
issue  it,  was  an  absolute  nullit3\ 

The  decision  of  the  high  federal  court  under  identical  constitutional 
provisions  rendered  August  23, 1898,  in  the  case  of  the  New  York  and 
Bermudez  Company  would  seem  to  be  conclusive  upon  the  point. 
That  compan}"  claimed  under  a  contract  similar  to  that  under  consider- 
ation here.  On  January  -i,  1898,  the  contract  of  the  New  York  and 
Bermudez  Company,  for  alleged  failure  of  performance  b}"  the  conces- 
sionaire, was  declared  null  by  Executive  resolution.  The  matter  was 
brought  by  petition  of  the  company  before  the  high  federal  court* 
which  by  its  judgment  of  August  23,  1898,  declared  that  ''the  Exec- 
utive resolution  passed  by  the  National  Government  dated  the  4th  of 
January  of  the  present  year,  declaring  broken  and  determined  the  con- 
tract of  which  the  New  York  and  Bermudez  Company  is  concessionaire 
is  null  and  void." 

The  court  says  in  its  opinion: 

The  only  point  for  our  investigation  is  whether  or  not  the  Executive  resolution 
which  has  given  rise  to  the  petition  of  the  representative  of  the  New  York  and  Ber- 
mudez Company  constitutes  an  act  of  usurped  authority. 

Notwithstanding  the  Executive  resolution  of  September  9,  1886,  the 
Fitzgerald  contract  remained  subsistent  and  effective  to  vest  in  the 
grantees  all  the  rights  and  privileges  therein  designated.  And  it  fol- 
lows that  the  subsequent  approval  of  the  Guzman-Blanco-Turn])ull 
contract  could  not  operate  to  invest  TurnbuU  with  the  same  rights  and 
privileges,  inasnmch  as  the  Government  could  not  grant  to  TLirnl)ull 
the  rights  which  it  had  previously  granted  to  and  which  were  legally 
existing  in  the  grantees  of  the  Fitzgerald  contract. 

It  appears  from  the  evidence  that  on  March  14, 1888,  the  President  of 
the  Republic,  with  the  affirmative  vote  of  the  federal  council,  declared 
the  adjudication  in  favor  of  George  TurnbuU  of  500  hectares  of  land 
which  forms  the  superficies  of  the  "Imataca"  iron  mine,  under  the 
formalities  of  the  law  relating  to  waste  lands  of  June  2,  1882.  The 
adjudication  was  made  for  the  price  of  7.100  bolivars  in  coin,  equiva- 
lent to  20,(100  l)olivars  of  the  5  per  cent  national  consolidated  del)t; 
which  it  is  alleged  Turn))ull  made  over  to  the  office  of  the  board  of  public 
credit;  and  the  Govermnent  having  disposed  that  the  title  of  owner- 
ship of  said  lands  be  issued,  the  minister  of  fomento  declared  in  the 
name  of  the  United  States  of  Venezuela  that  l)y  virtue  of  the  com- 
pleted sale  the  dominion  and  ownership  of  said  lands  was  transferred 
in  favor  of  the  purchaser,  George  TurnbuU. 

On  the  same  day,  the  President  of  the  Republic,  with  the  vote  of 
the  federal  council,  pursuant  to  the  provisional  title  to  the  ''  Imataca'^ 
mine,  issued  bj^  the  governor  of   the  Federal   Territory  Delta,  on 


47-i  REPORT  OF  ROBERT  C.  MORRIS. 

October  30,  ISST,  to  Georoe  Turnbull,  and  in  accordance  with  the 
provisions  of  the  decree  reoulatino-  the  hiw  of  mines,  dictated  August 
3,  1887,  conceded  to  Georoe  TurnhuU  the  ownership  of  said  mine  in 
all  the  extension  which  hidoiigs  to  it,  and  in  respect  of  all  the  deposits 
of  iron  com])rised  in  the  same;  giving-  to  the  said  Turnbull  as  conces- 
sionaire, and  hi.s  successors,  for  the  term  of  ninety-nine  years,  the  right 
to  the  exploitation  and  possession  of  said  mine. 

On  the  30tii  of  June,  1888,  the  President  of  the  Republic,  with  the 
vote  of  the  federal  council,  conceded  to  George  Turnbull  a  definitive 
title  to  the  mine  of  asphalt  situated  in  the  District  of  Guzman  Blanco 
in  the  Federal  Territory  Delta  on  the  island  of  Pedernales,  "the 
requisites  provided  by  the  decree  regulating  the  law  of  mines  of 
August  3,  1887,  having  been  fulfilled," 

On  October  3,  1888,  the  National  Executive,  with  the  affirmative 
vote  of  the  federal  council,  declared  the  adjudication  in  favor  of 
George  Turnbull  of  2n0  hectares  of  public  lands,  "destined  for  the 
exploitation  of  a  mine  of  asphalt  which  the  purchaser  possesses," 
situated  in  the  district  of  Guzman  Blanco  of  the  Federal  Territory 
Delta,  in  the  island  of  Pedernales.  The  adjudication  was  made  for  the 
price  of  2,970  bolivars  in  coin,  equivalent  to  8,000  bolivars  of  the 
5  per  cent  national  consolidated  debt,  which  Turnbull  is  alleged  to 
have  made  over  to  the  oifice  of  public  credit;  and  the  Government 
having  disposed  that  the  title  of  ownership  of  said  lands  shall  be  issued, 
the  minister  of  fomento  declared,  in  the  name  of  the  United  States  of 
Venezuela,  that  b}^  virtue  of  the  completed  sale  the  dominion  and 
ownership  of  said  lands  was  henceforth  transferred  in  favor  of  the 
purchaser,  George  Turnbull. 

It  is  difiicult  to  perceive  in  what  manner  these  grants  to  George 
Turnbull  can  be  sustained,  in  view  of  the  fact  that  at  the  time  they 
were  made  the  Fitzgerald  contract  had  not  been  judiciall}"  declared 
forfeited^  and  was  in  full  force  and  effect.  The  lands  and  mines 
described  in  the  Turnbull  titles  are  within  the  territorj'  designated  in 
the  Fitzgerald  concession.  The  Government  of  Venezuela,  by  the 
latter  instrument,  conceded  to  Cyrenius  C.  Fitzgerald,  his  associates, 
assigns  and  successors,  for  the  term  of  ninety-nine  years,  the  exclusive 
right  to  develop  the  resources  of  "'  the  Island  of  Pedernales"  and  "the 
territory  from  the  mouth  of  the  Araguao,  the  shore  of  the  Atlantic 
Ocean,  the  waters  above  the  Greater  Araguao  to  where  it  is  joined  by 
the  Araguaito  stream;  from  this  point  following  the  Araguaito  to  the 
Orinoco,  and  thence  the  waters  of  the  upper  Orinoco,  surrounding  the 
island  of  Tortola,  which  will  form  part  of  the  territory  conceded,  to 
the  junction  of  the  Jose  stream  with  the  Fiacoa;  from  this  point  fol- 
lowing the  waters  of  the  Jose  stream  to  its  source;  thence  in  a  straight 
line  to  the  summit  of  thelmataca  Range;  and  from  this  point,  follow- 
ing the  sinuosities  and  more  elevated  summits  of  the  ridge  of  Imataca, 
to  the  limit  of  British  Guiana;  from  this  limit  and  along  it  toward 
the  north  shore  of  the  Atlantic  Ocean;  and,  lastly,  from  the  point 
indicated,  the  shore  of  the  Atlantic  Ocean,  to  the  mouth  of  the  Araguao, 
including  the  island  of  this  name  and  the  others  intermediate  or  situ- 
ated in  the  delta  of  the  Orinoco,  and  in  contiguity  with  the  shore  of 
the  said  ocean." 

Moreover,  and  for  an  equal  term  of  years,  the  Government  of  Vene- 
zuela conceded  to  the  grantees  of  the  Fitzgerald  contract  "  i\iQ  exclusive 


REPORT  OF  ROBERT  &.   MORRIS.  475 

right  of  establishing  a  colony  for  the  purpose  of  developing  the 
resources  alreac\y  know  n  to  exist,  and  those  not  yet  developed,  of  the 
same  region,  including  asphalt  and  coal,  etc." 

And,  furthermore,  the  Government  of  Venezuela  agreed  with  Fitz- 
gerald, his  associates,  assigns,  and  successors,  that  "a  title  in  conform- 
ity with  the  law  shall  be  granted  to  the  contractor  .for  every  mine 
which  may  be  discovered  in  the  colon3\" 

If  the  grants  to  Turnbull  are  valid,  then  the  language  of  the  Fitz- 
gerald franchise  is  meaningless;  for,  on  any  such  theory,  the  Govern- 
ment of  Venezuela  could  by  piecemeal  take  away  from  the  grantees  of 
the  Fitzgerald  concession  and  give  to  others  every  right  or  privilege 
therein  conferred.  .It  is  perfectly  clear  that  the  Government,  having 
in  1883  transferred  the  e.i'clushe  right  of  developing  and  exploiting  the 
resources  of  the  territory  in  question  to  Fitzgerald  and  his  assigns, 
could  not  in  1888  transfer  to  Turnbull  the  right  to  any  part  of  the 
resources  of  that  same  territory",  for  the  plain  and  simple  reason  that 
the  Government  could  not  transfer  what  it  did  not  possess.  That  he 
who  is  prior  in  time  is  stronger  in  right,  is  a  maxim  of  both  the  civil 
and  the  common  law.  The  Fitzgerald  concession  of  September  22, 
1883,  not  having  been  declared  forfeited  by  any  competent  judicial 
authority,  after  notice,  hearing,  and  judgment,  was  in  1888  a  legally 
subsisting  and  valid  agreement,  binding  upon  both  the  parties  to  it, 
vesting  in  the  grantees  the  exdasive  right  of  exploitation  of  the  delta 
territory  and  the  island  of  Pedernales,  and  imposing  upon  the  Govern- 
ment of  Venezuela  the  obligation  to  grant  a  title,  in  conformity  with 
the  law,  to  Fitzgerald  or  his  assigns  for  every  mine  discovered  in  the 
colonv.  The  Turnbull  titles  of  1888  were  in  derogation  of  these  prior 
rights  and  obligations,  and  vested  in  the  grantee  no  rights  whatever. 
They  were  altogether  null  and  void. 

The  hostile  and  arbitrary  acts  of  the  Government,  which  the  Manoa 
Company,  Limited,  assignee  of  the  Fitzoerald  contract,  was  wholly 
powerless  to  prevent,  were  calculated  to,  and  it  is  alleged  did,  paralyze 
the  operations  of  the  company,  impaired  its  credit,  and  prevented  the 
further  prosecution  of  its  work  of  exploitation.  So  matters  stood 
until,  on  the  18th  of  June,  1896,  the  Government  declared  the  annul- 
ment of  the  Turnbull  contract  of  January  1,  1886,  and  the  definitive 
titles  to  the  Imataca  iron  mine  and  the  Pedernales  asphalt  mine,  which 
had  been  issued  to  Turnbull  in  1888,  and  on  the  same  date  the  Govern- 
ment reaffirned  the  Fitzgerald  contract  of  September  22,  1883,  and 
authorized  the  Manoa  Company,  Limited,  within  six  months  from  that 
date  to  renew  its  works  of  exploitation  in  order  to  the  greater  devel- 
opment of  the  natural  riches  of  the  territory  em))raced  in  said  conces- 
sion, requiring  the  company  to  report  to  the  national  Executive  from 
time  to  time,  through  the  ministry  6f  fomento,  all  of  the  works  carried 
on  by  it  in  execution  of  the  contract. 

These  resolutions  of  June  18,  18*.).5,  in  no  wise  changed  the  legal 
status  of  the  various  interested  parties.  Tlu^  Fitzgerald  contract  had 
never  l)een  legally  annidled.  The  (Juzman-Blaiico-Turn))ull  contiact 
of  January  1,  1.S86,  and  the  Turnbull  titles  of  18S8  had  never  been 
legally  effective,  but  were  invalid  ab  initio.  The  resolution  in  favor 
of  the  Manoa  Company,  however,  amounted  to  an  authorization  hy  i\\v 
Venezuelan  Government  to  the  renewal  of  the  work  of  exploitation 
and  colonization — a  permission  of  which  the  company  promptly  availed 
itself,  as  its  reports  presented  in  evidence  here  clearly  show. 


476  REPORT  OF  ROBERT  C.  MORRIS. 

On  the  10th  of  July,  1895,  the  Government,  at  the  instance  of  the 
National  Anoninious 'Company  ''Mines  of  Pedernales,"  resolved  that 
''the  resolution  of  June  li>  (IS)  last,  in  which  the  contract  celebrated 
with  the  citizen  George  Turnbull  was  declared  null,"  did  not  in  any  way 
atlVct  the  rights,  legitimately  acquired,  of  the  asphalt  mine  of  the 
Pedernales  Islan^,  nor  the  200  hectjires  of  land  destined  to  its  exploita- 
tion by  the  National  Anoninious  Company,  called  "Mines  of  Peder- 
nales," which  company  was  consequently  at  liberty  to  go  on  with 
the  works  of  the  aforesaid  mine  and  the  200  hectares  of  public  land 
referred  to. 

On  the  20th  of  November,  1896,  upon  the  petition  of  George  Turn- 
bull,  the  President  of  the  Republic  thought  fit  to  decide  that  the  reso- 
lution of  June  18,  1895,  declaring  the  annulment  of  the  contract  made 
Januarv  1,  1880,  with  the  above-mentioned  Turnlnill  for  the  exploita- 
tion of  a  portion  of  the  delta  of  the  Orinoco,  did  in  no  way  affect  the 
rights  legitimately  acquired  by  him  to  the  ""Imataca"  iron  mine,  which 
was  thereby  excluded  from  the  aforesaid  resolution,  together  with  the 
500  hectares  of  land  forming  its  superficial  area,  and  consequently  the 
citizen  George  Turnbull  remained  authorized  to  continue  the  exploita- 
tion of  the  mine  and  public  lands  referred  to. 

These  resolutions  are  merely  reassertions  of  the  original  Turnbull 
titles  of  1888,  and,  like  their  originals,  are  in  plain  derogation  of  the 
prior  and  subsisting  rights  of  the  grantees  of  the  Fitzgerald  concession, 
and  altogether  null  and  void.  The  National  Anoninious  Company 
''Mines  of  Pedernales"  could  not  have  occupied  the  position  of  inno- 
cent purchaser,  inasmuch  as  the  Fitzgerald  contract  had  been  for  many 
years  a  matter  of  public  record. 

On  the  16th  of  October,  1895,  the  Orinoco  Company  was  organized 
under  the  laws  of  the  State  of  Wisconsin,  and  on  the  following  day 
the  Manoa  Company,  Limited,  conveyed  to  the  said  Orinoco  Company 
the  propertv  described  in  the  Fitzgerald  concession  until  September 
21.- 1982,  excepting,  however,  the  Pedernales  asphalt  mine  and  the 
Imataca  iron  mine.  On  February  4,  1896,  the  Orinoco  Mining  Com- 
pany was  incorporated  under  the  laws  of  the  State  of  Wisconsin,  and 
on  February  10,  1896,  the  Orinoco  Company  conveyed  to  the  Orinoco 
Mining  Company  all  its  rights  in  the  concession  as  transferred  to  it  bv 
the  Manoa  Company,  Limited  (i.  e.,  reserving  and  excepting  the  Peder- 
nales asphalt  mine  and  the  iron  mine  of  Imataca). 

The  Orinoco  Mining  Company,  on  October  1,  1896,  filed  in  the  ofiice 
of  the  Secretary  of  State  of  the'  State  of  Wisconsin  an  amendment  to 
its  articles  of  association,  changing  its  name  to  Orinoco  Company,  Lim- 
ited, and  on  October  17,  1896,  the  Manoa  Company,  Limited,  and  the 
Orinoco  company  certified  to  the  transfer  of  title  of  all  the  lands,  rights, 
interests,  privileges,  and  immunities  originally  granted  by  the  Fitz- 
gerald contract  (except  as  to  the  asphalt  and  iron  mines)  to  the  said 
Orinoco  Companv,  Limited.  The  Manoa  Company,  Limited,  on  May 
15,  1895,  conveyed  to  William  M.  Saflord  the  location  of  the  Imataca 
iron  mine,  and  the  same  company  had,  on  October  17,  1895,  conveyed 
to  Samuel  Grant  the  Pedernales  asphalt  deposits.  These  conveyances 
are  evidently  explanatory  of  the  reservations  and  exceptions  as  to  the 
said  properties  in  the  transfer  above  set  forth. 

On  November  20, 1896,  the  President  of  the  Republic  of  Venezuela, 
"wishing  to  put  an  end  to  the  difiiculties  which  have  presented  them- 


REPORT  OF  ROBERT  C.  MORRIS.  477 

selves,  preventing  the  exploitation  of  the  delta  of  the  Orinoco,  other- 
wise known  as  the  'Manoa/  referred  to  in  the  resolutions  of  June  18, 
1895,"  recognized  as  valid  the  transfer  made  bv  the  '*  Manoa  Company, 
Limited,"  to  the  ''Orinoco  Company,  Limited,"  of  all  its  rights  and 
titles  to  and  in  the  said  concession,  with  exception  of  the  mine  of  iron 
*'  Imataca,"  situated  on  both  banks  of  the  stream  Corosimo  in  the  Manoa 
district  of  the  old  Federal  Territory  Delta,  and  the  600  hectares  of  public 
lands  which  comprise  its  superficial  area,  and  of  the  mine  of  asphalt  called 
*  'Minas  de  Perdernales,"  situated  on  the  island  of  the  same  name,  together 
with  the  200  hectares  of  public  land  destined  for  its  exploitation.  He 
acknowledged  likewise  as  valid  the  work  and  other  acts  of  the  "  Orinoco 
Company,  Limited"  (successors  to  the  ''Manoa  Company,  Limited"), 
done  and  performed  by  them  in  fulfillment  of  the  terms  of  the  resolu- 
tions of  June  18,  1895^  and  disposed  that  the  said  company  be  granted 
the  exemption  from  payment  of  custom-house  duties  on  machinery 
and  other  effects  imported  through  the  Ciudad  Bolivar  custom-house, 
destined  to  the  works  of  said  concession,  and  that  all  facilities  be  granted 
to  the  the  interested  parties  for  the  aforesaid  exploitation,  providing 
such  facilities  be  not  in  opposition  to  the  laws  and  resolutions  of  the 
Eepublic  in  force. 

On  December  30,  1896,  James  A.  Radclifle,  receiver  of  the  Manoa 
Company,  Limited,  AVilliam  M.  Safi'ord,  and  George  N.  Baxter,  trus- 
tees, conveyed  to  the  Orinoco  Company,  Limited,  its  successors  and 
assigns,  the  contract  and  concession  of  September  22,.  1883.  The  deed 
recites  that  at  a  special  term  of  the  supreme  court  of  the  State  of 
iS'ew  York,  a  court  of  general  jurisdiction,  sitting  in  the  county  of 
Kings,  on  the  3d  day  of  March,  1896,  it  was  among  other  things 
ordered,  adjudged,  and  decreed  by  the  said  court  in  a  certain  action 
then  pending,  and  which  was  commenced  on  the  llth  day  of  February, 
1896,  between  Randolph  Stickney  and  the  Manoa  Company,  Limited, 
for  a  sequestration  of  the  property  of  said  company,  pursuant  to  the 
laws  of  the  State  of  New  York,  that  th<^  said  James  A.  Radclifie  be 
appointed  permanent  receiver  of  said  Manoa  Company,  Limited;  and 
that  by  its  judgment  of  November  11,  1896,  said  court  ordered  the 
said  receiver  to  sell  at  public  auction  all  the  rights,  title,  and  interest 
of  said  Manoa  Company,  Limited,  in  and  to  said  concession  to  the 
highest  bidder,  and  make  report  of  said  sale  to  the  court:  and  that 
safd  receiver  did  on  the  28th  day  of  November,  1896,  sell  said  property 
to  William  M.  Saffoi-d  and  George  N.  Baxter,  they  being  the  highest 
bidders;  and  that  said  report  of  the  receiver  was  afterwards  confirnied 
and  the  receiver  ordered  to  make  a  deed  to  the  parties  na'med,  which 
Avas  done;  and  that  the  said  Satt'ord  and  Baxter  declared  that  they  ))id 
iti  said  property  as  triistees  for  the  Orinoco  Company,  Limited,  and 
that  the  said  Saffoi'd  and  Baxter,  in  the  execution  of  said  trust,  joined 
in  said  deed  to  the  Orinoco  Company,  Limited. 

The  Orinoco  Company,  Limited,"  on  July  22,  1897,  entered  into  a 
contract  with  the  Orinoco  Iron  Company,  a  corporation  organized 
under  the  laws  of  the  State  of  West  Virginia,  whereby  it  granted  to 
the  said  iron  company  the  right  to  mine  and  ship  any  and  all  deposits 
of  iron  ore  on  the  Fitzgerald  concession,  which  it  had  the  right  to 
exploit  under  its  contract  for  the  unexpired  term  thereof  in  considera- 
tion of  certain  stipulated  royalties.  The  president  of  the  Orinoco 
Iron  Companv  was  Albert  B."^Roeder,  its  secretary  was  Benoni  Lock- 
wood,  jr.,  ancl  its  treasurer  was  James  E.  York. 


478  REPORT  OF  ROBERT  C.  MORRIS. 

It  appears  from  the  evidonce  that  on  the  30th  day  of  March,  1895, 
George  Turnbull,  then  residino-  in  London,  entered  into  a  contract 
with  one  ,Toseph  Robertson,  of  Ijondon,  as  trustee  of  a  s3^ndicate  there- 
after to  be  formed,  and  called  the  Orinoco  Iron  S^yndicate,  Limited^ 
under  the  English  companies  acts  of  180!^  to  1890,  the  object  of  which 
syndicate  was  to  examine,  test,  and  work  the  "Imataca"  iron  mine 
and  to  output  and  market  iron  ore,  timber,  and  other  commercial 
products  on  the  land  during  the  period  of  one  year  from  the  date  of 
their  shipment  of  the  first  cargo  therefrom;  if  the  said  syndicate 
should  he  satisfied  with  the  result  of  their  trial  they  were  to  register 
a  limited  company  under  said  acts  within  twelve  months  for  the  pur- 
pose of  acquiring  the  said  property,  which  Turubull  agreed  to  lease  and 
convey,  with  his  whole  rights  and  interests  therein  and  the  ores  and 
minerals  therein  and  thereunder.  The  syndicate  was  bound,  on  or 
before  eJanuar}"  15,  1896,  to  intimate  to  Turnbull  whether  or  not  they 
intended  to  go  on  with  the  formation  of  said  company.  The  Orinoco 
Iron  S3"ndicate  was  afterwards  formed,  and  on  September  18,  1895, 
adopted  the  agreement  between  Turnbull  and  Robertson  of  March 
30  previous. 

The  English  company,  the  Orinoco  Iron  Syndicate,  Limited,  chartered 
the  schooner  jVetn  Dny^  and  shipped  therein  to  Venezuela  its  employ- 
ees, machinery,  materials,  and  supplies.  The  New  Day  proceeded  to 
Manoa,  where,  on  January  20,  1896,  the  machinery,  materials,  and 
supplies  were  landed.  For  failure  to  land  at  the  proper  port  of  entry 
at  Ciudad  Bolivar,  the  Netn  Day  and  her  cargo  were  denounced  by 
Gen.  Joaquin  Berrio,  the  then  administrator  of  customs  at  said  port,  and 
proceedings  were  instituted  in  the  national  court  of  hacienda  of  Ciudad 
Bolivar,  against  the  schooner,  her  captain,  and  the  Orinoco  Iron  Syndi- 
cate, Limited,  resulting  in  a  judgment  on  May  9, 1896,  imposing  a  fine 
upon  the  syndicate  of  219,985.17  bolivars.  This  judgment  was  afiirmed 
on  September  21,  1896,  by  the  high  federal  court.  On  November  14, 
1896,  the  court  of  hacienda  decreed  the  embargo  of  all  the  rights,  shares, 
and  belongings  which  the  Orinoco  Iron  Syndicate  had  in  the  lands  and 
mines  of  Manoa.  On  October  18, 1898,  the  said  court  ordered  the  sale  by 
public  auction  of  the  rights  of  exploitation  acquired  by  the  Orinoco  Iron 
Syndicate,  Limited,  in  the  iron  mines  of  Manoa,  situated  on  both 
banks  of  the  Corosimo  stream,  so  as  to  pay  with  the  product  the  duties 
owing,  according  to  the  liquidation  made,  to  the  national  treasury  and 
to  General  Berrio,  denouncer  and  apprehender  of  the  contraband  intro- 
duced, and  the  other  expenses  and  costs  of  suit;  that  the  said  right  of 
exploitation  acquired  in  the  iron  mine  of  Manoa  by  the  said  company 
had  been  appraised,  by  experts  appointed  for  that  purpose,  at  200,000 
bolivars;  that  the  rights  which  the  company  had  in  the  mine  of  Manoa 
included  500  hectares  of  surface,  according  to  the  acknowledgment  of 
right  made  by  the  National  Executive  in  a  resolution  of  November  20, 
1896. 

Pursuant  to  the  above-cited  order  of  the  court  of  hacienda,  the  judi- 
cial sale  took  place  in  the  said  court  on  November  18,  1898.  Benoni 
Lock  wood,  jr.,  being  the  highest  bidder  at  the  sale,  was  declared  the 
purchaser  of  the  property  sold,  upon  his  offer  of  120,000  bolivars,  to 
be  paid  within  fifteen  days  from  the  date  of  sale.  Robert  Henderson 
was  nominated  the  depositary.  The  court  declared  that  the  condition 
stipulated  in  Lockwood's  proposition  being  complied  with,  he  should 


JIEPORT    OF    ROBERT    C.   MORRIS.  479 

be  put  in  possession  of  the  auctioned  riglits.  and  that  a  certified  copy 
in  due  form  of  the  sale  should  be  issued  to  him  to  serve  as  title  of 
property.  The  time  for  payment  was  extended  to  December  20.  On 
the  19th  Carlos  Hammer,  with  power  of  attorney  from  Benoni  Lock- 
wood,  jr.,  paid  into  the  court  the  sum  of  120,000  bolivars,  the  purchase 
money  of  the  Manoa  or  Iiuataca  Mine,  and  demanded  a  certificate  of 
sale.  The  court  declared  well  and  duly  performed  the  payment  of  the 
purchase  mone}",  and  ordered  that  the  proper  certificate  be  issued  to 
Lockwood,  and  that  he  be  given,  in  virtue  of  his  title,  the  actual  pos- 
session of  said  mine.  The  power  of  attorney  executed  by  Lockwood  to 
Hammer  states  that  the  purchase  of  the  mine  was  made  by  him  in  the 
name  of  and  representing  the  Orinoco  Company,  Limited,  and  that  in 
consequence  the  title  of  the  property  must  be  made  out  in  favor  of 
said  company,  to  which  corporation  the  rights  exclusivel}'  belonged  by 
virtue  of  the  purchase  made  bj-  him. 

In  its  memorial  the  Orinoco  Company,  Limited,  alleges  that  it 
adopted  this  course  with  the  object  of  quieting  its  title  to  the 
"Imataca"  iron  mine  as  against  the  claims  of  George  Turnbull. 

On  November  29,  1898,  Benoni  Lockwood,  jr.,  in  consideration  of 
the  sum  of  823,026  to  him  paid  by  the  Orinoco  Company,  Limited, 
conveyed  to  the  said  company  all  his  rights,  title,  and  interest  in  and 
to  the  "Imataca"  iron  mine,  meaning  and  intending  to  convey  all  his 
rights,  title  and  interest  in  and  to  the  premises  purchased  by  him  at  a 
judicial  sale  at  Ciudad  Bolivar  on  the  18th  day  of  November,  1898. 

Mr.  Turnbull  protested  against  the  judicial  sale  under  the  execution 
issued  from  the  national  court  of  hacienda  at  Ciudad  Bolivar,  and  on 
November  21,  1898,  filed  a  petition  in  the  second  hall  of  the  high  fed- 
eral court  at  Caracas  that  the  proceedings  relative  to  the  case  in  the 
said  court  of  hacienda  be  remitted  to  the  second  hall  of  the  high  fed- 
eral court  for  review;  and  thereafter  the  latter  court  on  February  21, 
1899,  held  that  Turnbull  had  proven  by  authentic  documents  which  he 
had  exhibited  and  which  were  in  the  expediente  that  he  was  the  legit- 
imate owner  of  the  mine  referred  to  and  that  the  said  court  declared 
without  force  the.  auction  sale  carried  out  with  reference  to  the  iron 
mine  ''Imataca"  and  that  said  mine  was  not  atfected  b}^  said  sale. 
But  afterwards  upon  appeal  to  the  third  hall  of  the  high  federal  court 
the  foregoing  judgment  of  the  hall  of  second  instance  was,  on  May  6, 
1899,  reversed  and  declared  to  be  revoked  "  entodos  sus  partes  ''  (in  all 
its  parts). 

In  the  month  of  ]\Iay,  1899,  George  Turnlnill  l)rouglit  an  action  in 
the  court  of  first  instance  of  the  federal  district,  civil  division,  against 
IBenoni  Lockwood,  jr.,  the  Orinoco  Iron  Company,  and  Gen. 
Joaquin  Berrio  for  damages  resulting  from  the  condemnation  proceed- 
ings and  sale  at  Ciudad  Bolivar,  alleging  that  the  English  syndicate, 
the  Orinoco  iron  syndicate,  had  had  no  right  whatever  in  the  Iniataca 
mine,  and  that  therefore  the  execution  against  said  mine  was  illegal 
and  the  sale  thereunder  void.  Benoni  Lockwood,  jr.,  having  declared 
before  the  court  at  Ciudad  Bolivar  that  he  was  acting  on  behalf  of  the 
Orinoco  Company.  Limited,  TurnlniU  afterwards  joined  said  company 
in  the  action,  in  order,  as  the  court  states,  ''  that  it  should  be  declared 
that  said  company  had  no  right  of  action  against  him  nor  claim  over 
his  mine  Imataca'iy  virtue  oftheso-caUed  auction  sale  which  took  place 
at  Ciudad  Bolivar  Vjefore  the  national  judge  of  hacienda,  since  the 


480  REPORT  OF  ROBERT  0.  MORRIS. 

English  syndiovto  had  no  rii'fhts.'"  On  jurisdictional  grounds  the 
chiinis  at^aizist  Borrio  wore  withdrawn.  The  cau.se  then  proceeded, 
counsel  for  the  remaining  defendants  answering  in  ol)edience  to  the 
directions  of  the  court,  l)ut  not  in  any  respect  accepting  the  jurisdic- 
tion and  th(^  validity  of  the  proceedings.  The  court  then  sustained  its 
jurisdiction  against  Lockwood  and  the  Auiei'ican  company  and  entered 
judgnuMit  as  follows:  On  the  claim  for  damages,  that  the  proof  for 
Turnl)ull  w^as  insufficient  and  judgment  was  accordingly  entered  for 
Benoni  Lockwood,  jr.,  and  the  corporation  sued;  and  as  to  the  second 
part  of  the  action  the  coui-t  held  that,  as  George  TurnbuU  has,  with 
the  documents  registered  in  the  suhoffice  of  the  federal  district  and 
dated  the  14th  and  19th  of  March,  1888,  issued  by  the  President  of 
the  Kepu])lic,  proved  his  ownership  of  an  iron  mine  situated  at  Manoa, 
in  the  State  of  Guayana;  and  also  his  ownership  of  5(t0  hectares  of 
unreclaimed  lands  which  form  the  superticies  of  the  iron  mine  denom- 
inated Imataca,  and  by  the  resolution  of  the  20th  of  November,  1896, 
that  the  said  lands  and  mine  constitute  a  property  legally  acquired  by 
TurnbuU  apart  from  the  Manoa  concession  which  had  been  declared 
forfeited;  and  as  the  Orinoco  Company,  Limited,  opposed  this  title  by  a 
title  given  by  an  auction  on  the  18th  of  November,  1898,  before  the 
judge  of  hacienda  of  Ciudad  Bolivar,  which  auction  took  place  in 
virtue  of  an  execution  against  the  Orinoco  Iron  Syndicate,  Limited, 
an  English  sjnidicate,  and  as  in  this  respect  the  court  was  of  opinion 
that  the  said  title  is  not  sufficient  to  lessen  the  rights  and  privileges 
which  TurnbuU  has  as  proprietor  in  the  said  mine,  because,  in  the 
first  place,  it  did  not  appear  that  TurnbuU  intended  to  grant  his  prop- 
erty or  any  part  thereof  to  any  company,  and  much  less  was  it  proved 
before  the  judge  and  auctioneer  that  the  Orinoco  Iron  Syndicate, 
Limited,  had  rights  over  the  mine  now  in  dispute,  because  for  that 
purpose  it  would  tirst  have  been  necessary  to  have  sought  for  the  title 
from  which  the  existence  of  those  rights  was  derived  in  order  to  make 
the  auction  sale  feasible  and  to  furnish  the  purchaser  such  knowledge 
of  what  he  was  buying;  that  in  the  presence  therefore  of  the  title 
shown  by  plaintiff  and  that  set  in  opposition  by  the  American  com- 
pany, the  court  declared  that  it  must  maintain  George  TurnbuU  in  the 
rights  and  privileges  granted  by  law  to  legal  owners  and  give  judg- 
ment against  the  Orinoco  Company,  Limited,  holding  that  said  com- 
pany had  i,o  rights  of  action  against  TurnbuU  and  no  rights  to  enforce 
on  his  mine  Imataca  hy  redmn  of  the  title  herein  referred  to. 

The  foregoing  judgment  was  rendered  in  the  hall  of  the  tribunal 
of  the  tirst  instance,  civil  division  of  the  federal  district  in  Caracas, 
on  June  7,  1900.  On  July  27,  1900,  in  the  magistrates  court  of  Ciudad 
Bolivar  it  was  decreed: 

That  having  considered  the  application  of  the  judge  of  the  district  of  Delia  Costa, 
dated  the  20th  instant,  in  which,  as  the  executing  officer  of  a  judgment  of  the  civil 
-division  of  the  court  of  first  instance,  he  asks  the  assistance  of  armed  forces  to  enable 
him  to  execute  the  said  judgment,  by  reason  of  the  resistance  on  the  part  of  parties 
required  and  condemned  to  deliver  possession  of  the  Imataca  mines,  situated  in  the 
jurisdiction  of  Delia  Costa;  and  also  consideringthe  representation  of  Mr.  JuanPadron 
Uztariz  as  the  attorney  of  George  TurnbuU,  in  whose  behalf  the  delivery  of  said 
property  is  to  be  made  under  said  judgment.  This  civil  and  military  court  in  con- 
formity" with  the  legal  prescriptions  in  the  matter  of  civil  authorities  aiding  the  judi- 
cial, as  is  proper  in  this  case,  doth  order  that  there  shall  be  placed  at  the  disposal  of 
said  judge  of  the  district  of  Delia  Costa  twenty  armed  men  under  the  command  of 
Colonel  Uncategui  l^elonging  to  the  military  force  of  this  place  in  the  name  of  the 
State  to  enforce  said  judgment. 


REPORT  OF  ROBERT  C.  MORRIS.  481 

Accordino'ly  on  August  -i,  1900,  proceedings  were  taken  as  set  forth 
in  the  following  certiticate: 

Juau  E.  Pino,  acting  secretary  of  the  judge  of  the  district  in  commission  certifies: 
That,  pursuant  to  the  measures  adopted  by  the  mandate  of  execution  given  oii 
the  19th  day  of  June,  190U,  by  tlie  judge  of  the  civil  court  of  the  first  instance 
in  the  federal  district,  there  is  found  an  act  as  follows:  In  the  Manoa  region  of 
the  Delia  Costa  district,  on  the  4th  of  August,  1900,  there  was  constituted  a  judge 
of  the  said  district,  atthe  iron  mine  of  Imataca,  on  the  side  of  the  mountain,  in  which 
location  is  found  the  principal  location  of  said  mine.  And  in  view  of  the  objection 
made  by  the  representatives  of  theprinoco  Company,  Limited,  to  the  transfer  of  the 
effects  belonging  to  George  Turnbull,  then  proceeded  to  comply  with  the  mandate 
and  execution  given  on  the  19th  of  June,  1900,  by  the  judge  of  the  court  of  first 
instance  in  the  civil  court  of  the  federal  district,  by  taking  formal  possession  of  said 
mine  and  all  its  appurtenances  in  the  presence  of  the  witnesses  Jose  Maria  Escobar, 
Augosto  Parejo  Gainos.  The  court  being  held  at  the  above-mentioned  place,  the 
above-mentioned  judge  solemnly  declared  in  the  name  of  the  Republic  and  by  the 
authority  of  the  law  that  George  Turnbull,  represented  by  Juan  Padron  Uztariz,  is 
placed  in  possession  of  the  immovables,  consisting  of  400  hectares  to  the  north  of  the 
Corosimo  River  and  100  hectares  to  the  south  of  the  same  river,  conforming  to  the 
title  of  the  said  property  given  the  14th  of  March,  1888,  and  reaffirmed  the  20th  of 
November,  1896.  Having  accomplished  which,  the  court  was  afterwards  transferred 
to  the  banks  of  the  Corosimo  River,  where  were  found  the  buildings  and  other  appur- 
tenances of  the  above-mentioned  mining  establishment,  and  it  was  again  declared 
equally  in  the  name  of  the  Republic  and  by  authority  of  the  law  that  the  owner, 
George  Turnbull,  is  placed  in  possession  of  the  following  property:  The  railroad  line 
that  goes  to  the  mine;  its  rolling  stock  and  other  appurtenances;  a  large  house  and 
two  small  living  houses;  two  sheds  covered  with  zinc;  tw^o  small  houses  covered  with 
zinc;  a  house  and  six  sheds  of  straw  for  laborers,  and  about  3,500  tons  of  iron  ore, 
situated  at  the  above-mentioned  river  and  taken  out  of  the  mine.  There  presented 
themselves  H.  H.  Verge  and  P.  Mattea,  manifesting,  the  first  in  his  character  as 
superintendent  of  the  Orinoco  Company,  Limited,  and  the  second  authorized  by 
George  B.  Boynton,  who  protested  in  the  most  solemn  manner  against  the  above- 
mentioned  acts  and  in  consequence  made  a  written  protest  whicrh  is  in  accordance  to 
above  action.  Furthermore  the  court  imposed  on  all  those  present  the  obligation 
that  they  are  to  respect  all  acts  legally  done  and  to  abstain  and  avoid  any  act  that 
might  impede  or  interfere  with  the  owner,  George  Turnbull,  or  his  representative,  in 
exercising  the  rights  that  they  are  entitled  to. 

In  a  communication  addressed  to  the  Secretarj^  of  State  of  the 
United  States,  dated  December  18,  1900,  G.  H.  Hinnau,  "of  counsel 
for  George  Turnbull,"  states  that  the  court  of  first  instance  in  the 
federal  district  at  Caracas,  being  a  duly  constituted  court  of  com- 
petent jurisdiction,  had  on  June  9,  1900,  finally  and  conclusively 
adjudicated  and  b}'  decree  confirmed  the  tenor  of  the  resolution  of  the 
Government  of  Venezuela  finding,  as  in  said  resolution  recited,  that 
the  title  to  the  Imataca  mines  was  vested  in  said  Turnl)ull,  and  that  no 
other  person  had  or  possessed  any  right,  title,  or  interest  therein,  and 
having  no  such  title,  any  possession  adverse  to  said  ownershij)  was 
unlawful,  and  that  from  such  findings  and  a  mandate  and  decree 
thereon  made  by  said  court,  dated  the  19th  day  of  June,  1900,  there  is 
no  appeal;  that  pursuant  to  the  adjudication  and  mandate  of  said  court 
and  in  the  enforcement  and  effectuation  thereof,  the  proper  authori- 
ties on  the  4th  day  of  August,  1900,  placed  said  Turnbull,  through 
his  agent,  Juan  Padron  Uztariz,  in  possession  of  the  pioperty  and  its 
appurtenances,  and  that  the  court,  for  the  j)urpose  of  thereinafter 
maintaining  Turnbull  in  the  lawful  maintenance  of  such  pro])erty, 
ordered  and  decreed  hy  perpetual  injunction  that  all  persons  be  there- 
after enjoined  and  I'esti'ained  fiom  impeding  or  interfering  with  the 
rights  of  said  Turnl»ull  in  and  to  said  mines  and  property. 

S.  Doc.  317,  58-2 31 


482  REPORT  OF  ROBERT  C.  MORRIS. 

It  is,  however,  to  be  observed  that  the  judgment  of  the  civil  divi- 
sion of  the  court  of  first  instance  of  the  federal  district  is  res  adjudicata 
sok^ly  upon  the  issue  properly  before  it  for  its  determination;  that  the 
Orinoco  Company,  Limited,  was  a  party  to  the  proceedings  in  said 
court  only  in  its  capacity  as  grantee  of  the  rights  and  interests,  if  any, 
ol>tained\v  Benoni  Lockwood,  jr.,  by  virtue  of  the  judicial  sale  at 
Ciudad  Bolivar  on  Novem])er  18,  1808,  under  the  execution  against 
the  Orinoco  Iron  Syndicate,  Limited;  that  the  judgment  of  the  court 
was  that  "in  the  presence  of  the  title  shown  by  plaintiff  (Turnbull), 
and  that  set  in  opposition  by  the  American  Company  (to  wit,  as  the 
record  shows,  'a  title  given  by  an  auction  on  the  18th  of  November, 
1898,  before  the  judge  of  hacienda  of  Ciudad  Bolivar'),  the  tribunal 
must  maintain  George  Turnbull  in  the  rights  and  privileges  granted 
by  law  to  legal  owners,"  and  that  ''the  company  has  no  rights  of 
action  against  him  (Turnbull)  and  no  rights  to  enforce  on  his  mine 
Imataca"bv  reason  of  the  title  herein  referred  to."  In  other  words, 
the  court  held  that  the  Turnbull  titles  of  March,  1888,  were  to  be  sus- 
tained in  opposition  to  the  title  olUained  by  Benoni  Lockwood,  jr., 
in  virtue  of  the  judicial  sale,  declared  invalid,  of  November  18,  1898. 

It  is  evident  from  the  record  that  the  prior  valid  and  subsisting 
rights  of  the  Orinoco  Company,  Limited,  as  cessionary  of  the  Fitz- 
gerald contract  of  September  22,  1883,  were  not  before  the  civil 
division  of  the  court  of  first  instance  of  the  federal  district  in  the  case 
of  George  Turnbull  v.  Benoni  Lockwood,  jr.,  et  al.,  and  therefore 
that  thev  are  in  no  manner  afl'ected  or  determined  by  the  judgment  of 
said  court  in  that  action.  Rulings  of  courts  must  be  considered  always 
in  reference  to  the  subject-matter  in  litigation  and  the  attitude  of  the 
parties  in  relation  to  the  fJoint  under  discussion. 

Moreover,  as  has  been  shown  heretofore,  jurisdiction  of  the  Fitz- 
gerald contract  vested,  constitutionally,  in  the  high  federal  court  alone. 

On  the  10th  of  October,  1900,  it  was,  through  tbe  ministry  of 
fomento,  resolved: 

Considering  that  the  contract  celebrated  September  22,  1883,  with  Cyrenius  C. 
Fitzgerald,  and  on  which  the  Orinoco  Company,  Limited,  now  bases  its  right  for 
the  exploitation  of  the  national  riches  in  the  delta  of  the  Orinoco,  and  colonization 
of  the  lands  conceded  has  now  no  legal  existence,  for  that  it  was  declared  void  for 
failure  of  performance  of  what  was  in  it  stipulated;  that  in  April,  1887,  the  National 
Congress  approved  a  contract  celebrated  with  the  North  American  citizen  George 
Turnbull,  in  the  same  regions  and  with  the  same  clauses,  and  in  all  equal,  with  that 
with  the  Manoa  Company,  Limited  (cessionaire  of  Fitzgerald),  declared  void,  which 
was  also  for  the  same  causes  declared  in  caducity  on  the  18th  of  June,  1985,  and  that 
on  the  same  day  of  the  said  month  and  vear  this  office  i  sued  an  executive  resolu- 
tion restoring  to  the  Manoa  Company,  Limited,  the  rights  and  privileges  conceded 
by  ihe  original  contract  with  Fitzgerald  in  1883,  and 

Considering,  first,  the  contract  celebrated  with  C.  C.  Fitzgerald  having  been 
declared  void  for  failure  of  compliance  with  article  5,  this  can  iiot  be  considered  in 
vigor  without  the  intervention  of  a  new  contract  approved  by  the  National  Congress; 
second,  that  the  legislature  of  the  State  of  Bolivar,  in  its  ordinary  session  in  1899, 
adopted  a  joint  memorial  to  the  National  Congress  declaring  tliat  the  company  con- 
cessionaire of  the  contract  celebrated  with  Fitzgerald  had  not  complied  in  its  fourteen 
years  of  existence  with  anvof  the  clauses  established  in  article  5  of  the  said  contract, 
and  that  this  interferes  with  the  interests  of  the  Venezuelans  for  exploiting  the  nat- 
ural products  of  that  region  of  the  Republic;  and,  third,  that  according  to  the  notes 
and  reports  forwarded  to  this  office  by  the  authorities  of  the  different  places  of  the 
region  to  which  refers  the  concession  already  mentioned,  all  concur  in  the  failure  of 
performance  of  the  same  and  of  the  palpable  evil  which  it  occasions,  as  well  to  the 
national  treasury  as  to  the  individual  industries,  the  Supreme  Chief  of  the  Republic 
has  seen  fit  to  dispose: 


REPORT  OF  ROBERT  C.  MORRIS.  483 

That  the  mentioned  contractH  are  declared  in«ubsistent. 
Let  it  be  communicated  and  pubhshed. 
For  the  National  Executive: 

(Signed)  Ramon  Ayala. 

The  evidence  presented  here  discloses  that  in  the  joint  memorial 
adopted  by  the  legislative  assembly  of  the  State  of  Bolivar  it  was  by 
that  body:  ''^ Resolved:  Article  1.  To  solicit  the  National  Congress  to 
order  the  necessary  dispositions  to  the  end  that  shall  be  petitioned  l)y 
the  competent  organ  and  shall  he  declared  hy  the  high  fedeixd  court  the 
recision  of  the  contract  celebrated  b}'  the  National  Executive  with  the 
citizen  C^^reniiis  C.  Fitzgerald,  his  associates,  assigns,  and  successors, 
the  22d  of  September,  1883,"  which  was  approved  bv  the  Congress  in 
session  the  23d  of  May,  1884. 

It  is  furthermore  significant  that  in  the  National  Congress  on  April 
T,  1899,  the  special  conmiission  appointed  to  consider  and  report  con- 
cerning the  resolution  of  the  legislative  assembly  of  the  State  of  Bol- 
ivar with  reference  to  the  Fitzgerald  contract  reported  to  the  citizen 
president  of  the  chamber  of  deputies  proposing  to  the  chamber  that  it 
remit  said  resohttion  to  the  National  Executive  in  order  that  it  resolve 
what  is  convenient;  but  that  on  April  26,  1899,  when  the  chamber  of 
deputies  considered  in  session  the  foregoing  report,  the  deputy,  Doctor 
Martinez,  proposed:  "That  at  the  end  of  said  report,  where  it  sa^'s, 
'in  order  that  it  resolve  what  is  convenient,'  it  shall  say,  'm  order 
that  they  he  suhmitted  to  the  Jugh,  federal  courts  to  the  end  that  that 
tribunal  shall  resolve  the  affair  in  covf ormity  vnth  justice.'' ''''  And  this 
proposition  was  voted  approved. 

Clearer  and  more  conchisive  evidence  (except  the  constitutional  pro- 
vision itself)  could  not  be  required  than  the  foregoing  action  of  the 
chamber  of  deputies  on  April  26,  1899,  and  the  decision  of  the  high 
federal  court  in  the  New  York  and  Bernmdez  case,  hereinbefore  cited, 
to  demonstrate  that  jurisdiction  of  the  Fitzgerald  contract  vested  sole!}' 
in  the  high  federal  coitrt,  and  that  such  executive  resolutions  as  those 
of  September  9, 1886.  and  of  October  10,  1900,  declaring  said  contract 
insubsistent,  are  illegal  assumptions  of  power  and  null  and  void. 

The  ((uestion  whether  or  not  the  grantees  of  the  Fitzgerald  conces- 
sion had  fulfilled  its  conditions  was  remitted  by  the  agreement  itself 
to  the  competent  tribunals  (^f  the  Republic  to  be  there  determined  in 
conformity  with  the  laws.  But  it  may  be  remarked  that  the  evidence 
shows  that  various  high  officials  of  Venezuela,  including  the  governor 
of  the  Federal  Territory  of  the  Delta,  certify  that  within  the  time 
limit  of  the  contract  the  concessionaires  had  commenced  the  work  of 
exploitation  "in  conformity  with  what  is  established  in  the  contract.'* 
When  the  Government,  on  June  18,  1895,  authorized  the  Manoa  Com- 
pany, Limited,  to  renew  its  work  of  exploitation  and  colonization, 
the  reports  made  l)y  the  company  to  the  (Tovernment  presented  in  evi- 
dence show  that  the  company  actively  resumed  the  prosecution  of  the 
enterprise.  Furthermon;,  it  is  to  be  observed  that  complaints  of  non- 
fulfillment of  the  Fitzgerald  contract  come  with  small  grace  from  the 
Governnu^nt  of  Vencxuela.  Evidence  is  not  wanting  here  that  shortly 
after  the  signing  of  the  alleged  contract  between  Guzman  Blanco  and 
George  Turnbull  in  Europe,  the  Government  of  Venezuela  ordered 
the  governor  of  the  Federal  Ten-itory  Delta  to  re(juire  the  Manoa 
Company,  Limited,  to  suspend  its  operations.     The  hostile,  arbitrary, 


484  REPORT  OF  robp:rt  c.  morris. 

ami  vacillating-  cour.sc  of  the  (jloverninout  toward  the  grantees  of  the 
Fitzgerald  coneessioius  from  the  illegal  annulnuMit  of  their  contract  on 
September  i),  iSStJ,  to  the  equally  illegal  annulment  on  October  10, 
1900,  was  calculated  to  paral^'ze  every  effort  to  fullill  their  obligations, 
destroy  their  credit,  create  expensive  litigation,  and  involve  in  linancial 


ruin  every  person  induced  to  invest  his  capital  in  the  company's  enter- 
prises in  reliance  upon  the  good  faith  of  the  Venezuelan  Government. 
Enterprises  of  pith  and  moment  recpiire  for  their  successful  prosecu- 


tion and  depend  upon  the  stability  of  rights  the  protection  of  law,  the 
sacredness  of  obligations,  and  the  inviolability  of  contracts.  Of  all 
these  elements  necessary  to  success  the  g-rantees  of  the  Fitzg-erald  con- 
tract were  deprived  by  the  arbitrary  acts  of  the  Venezuelan  Govern- 
ment, which  in  equity  and  justice  can  not  now  be  heard  to  complain 
that  the  said  grantees  did  not,  in  the  presence  of  such  obstacles  and  in 
opposition  to  the  unlawful  exercise  of  superior  force,  fultill  their 
obligations. 

The  twelfth  article  of  the  collusive  Guzman  Blanco  Turnbull  con- 
tract of  January  1,  1886,  shows  that  George  Turnbull  had  full  knowl- 
edge of  the  exclusive  rights  and  privileges  possessed  by  the  grantees 
of  the  Fitzgerald  concession  within  the  territories  described.  With 
this  knowledge,  Mr.  TurnbulFs  eti'orts  then  and  thereafter  were  per- 
sistently directed  toward  the  dispossession  of  said  grantees  from  the 
rights  lawfully  vesting  in  them  by  virtue  of  that  contract.  His  status 
throughout  the  history  of  this  remarkable  case  has  been  that  of  a  mere 
stranger  and  trespasser  seeking  to  divest  the  prior  lawful  and  subsist- 
ing titles  vesting  by  and  through  the  Fitzgerald  concession. 

That  he  who  has  the  precedence  in  time  has  the  advantage  in  right  is  a  funda- 
mental maxim  of  the  law;  not  that  time,  considered  barely  in  itself,  can  make  any 
such  difference,  but  because  the  whole  power  over  a  thing  being  secured  to  one  per- 
son this  bars  all  others  from  obtaining  a  title  to  it  afterwards.     (1  Fonbl.  Eq.,  320.) 

The  basis  of  Mr.  Turnbull's  claim  against  the  Government  of  Vene- 
zuela presented  to  this  Commission  is  the  alleged  interference  with 
and  deprivation  of  the  titles  obtained  b}^  him  in  1888  to  certain  lands 
and  mines.  But  these  titles  were  knowingly  sought  and  secured  by 
him  in  derogation  of  the  rights  of  the  grantees  of  the  Fitzgerald  con- 
cession.    His  titles  were  void  and  his  possession  unlawful  ab  initio. 

Mr.  Turnbull  complains  of  the  Venezuelan  Government: 

First.  That  by  reason  of  certain  acts  of  said  Government  he  was 
prevented  from  either  improving  or  selling  his  said  property,  and  that 
he  thereby  sustained  a  loss  of  upward  of  $50,000. 

Second.  That  by  reason  of  certain  other  acts  of  the  Venezuelan 
Government  he  was  deprived  of  the  consideration  agreed  to  be  paid 
him  under  his  contract  of  the  Orinoco  Iron  Syndicate  for  the  lease  of 
said  property  and  was  unable  to  make  any  other  contracts  with  respect 
thereto  or  to  develop  or  take  the  products  of  said  mines  and  was 
thereby  damaged  to  the  extent  of  £140,000. 

Third.  That  by  reason  of  certain  acts  of  the  Venezuelan  Govern- 
ment he  was  deprived  of  the  use  and  occupation  of  said  property  and 
prevented  from  concluding  any  contracts  or  to  use,  develop,  lease,  or 
sell  said  property  or  the  minerals  or  product  thereof  from  November 
20,  1896,  to  June  8,  1900,  and  wa^  thereby  damaged  in  the  sum  of 
$500,000. 

Fourth.  That  between  the  j^ears  1893  and  1900  he  expended  and 
caused  to  be  expended  the  sum  of  $120,000  in  the  United  States  and 


REPORT  OF  ROBERT  C.  MORRIS.  485 

England  in  travel,  legal  disbursements,  fees  to  the  Government  of 
Venezuela,  legal  expenses  of  negotiating,  promoting,  and  procuring 
six  several  contracts  for  the  leasing,  testing,  and  sale  of  said  property, 
all  of  which  contracts  were  made  ineffectual  and  void  by  reason  of  the 
spoliation  of  titles  to  said  property  by  sai^l  Government  and  the  with- 
holding of  the  use,  possession,  and  occupation  thereof. 

The  Manoa  Company,  Limited,  in  its  memorial  alleges,  respecting 
the  damages  and  injuries  caused  said  company  by  the  acts  of  the  Gov- 
ernment of  Venezuela: 

First.  That  if,  by  reason  of  the  force  and  effect  of  the  resolutions 
of  September  9  and  September  10,  1886,  and  the  act  of  Congress  of 
April  28, 1887,  or  of  any  or  either  of  them,  said  company  was  divested 
of  its  rights,  titles,  and  interests  in  and  to  the  Fitzgerald  concession, 
it  was  damaged  thereby  in  the  sum  of  $5,000,000. 

Second.  But  that  if  the  said  resolutions  and  act  did  not  have  that 
effect  it  was,  by  their  consequences,  prevented  from  the  development 
and  exploitation  of  the  resources  thereof  and  the  receipts  of  the 
rents,  revenues,  royalties,  and  profits  which  it  would  have  derived 
therefrom  between  the  date  thereof,  when  its  rights  thereto  had  been 
repudiated  by  the  Government,  and  the  date  of  the  resolution  of  June 
18,  1895,  when  its  said  rights  were  confirmed,  reaffirmed,  ratified, 
acknowledged,  and  reestablished;  which  rents,  revenues,  royalties, 
and  profits  said  company  estimates,  in  view  of  all  the  then  existing 
conditions  and  circumstances  of  the  case,  would  have  amounted  to  the 
sum  of  $300,000. 

Third.  That  of  the  resolution  of  July  10,  1895,  by  its  force  and 
effect  divested  said  company  of  its  right,  title,  and  interest  in  or  to 
the  mine  of  asphalt,  it  was  damaged  in  the  sum  of  $250,000;  but  that 
if  it  did  not  have  that  effect  or  operation,  then  the  said  company  was 
damaged  thereby  in  the  nominal  sum  of  $1,000. 

Fourth.  That  by  the  effect  thereof  as  a  slander  of  its  title  to  the 
entire  concession  and  each  and  every  part  of  it,  ])y  the  assertion  imma- 
nent in  that  resolution  and  an  obvious  implication  from  it,  that  the  title 
and  rights  of  the  said  company  to  its  entire  concession  were  liable  at 
any  time  to  be  arbitrarily  and  summarily  divested  and  annulled  in  like 
manner  either  totally  or  in  fragments  at  the  discretion  or  caprice  of 
the  executive  authority  and  without  due  process  of  law,  it  was  dam- 
aged in  the  sum  of  $2,000,000. 

Fifth.  That  if  the  resolution  of  November  20,  1896,  by  its  force 
and  effect  divested  said  company  of  its  rights,  title,  and  interest  in  or 
to  the  mine  of  Imataca  and  its  appurtenant  lands,  it  was  damaged 
thereby  in  the  sum  of  $1,000,00<>;  ))ut  that  if  it  did  not  luue  that 
effect,  then  said  company  was  damaged  thereby  in  the  nominal  sum  of 
$1,000. 

The  Orinoco  Company,  Limited,  ^complain  of  the  Govcrinncnt  of 
Venezuela: 

First.  That  on  account  of  the  acts  and  doings  of  said  Government 
and  its  officers  touching  the  sale  under  execution  issued  from  the 
national  court  of  hacienda  at  Ciudad  Bolivar  and  for  the  damages 
caused  by  it  and  them  to  said  company  by  the  deprivation  of  said  com- 
pany of  its  lawful  ])ossession  of  the  mine  of  Imataca  under  the  claim 
that  the  Government  had  a  lien  th(>reon  in  consequence  of  th(>  judg- 
ment in  said  court  against  the  Orinoco  Iron  Syndicate;  and  ])y  the 
exaction  and  appropriation  of  the  purch!is<\  price  thereof  and  the  costs, 


486  REPORT  OK  ROBERT  C.  MORRIS. 

expenses,  and  disbui-stMiients  causecl  thoreby,  iind  the  ojectment  from 
and  deprivation  of  said  niin(>,  that  said  company  was  damajj^ed  in  the 
sum  of  $Ll>5,()()0. 

Second.  That  by  reason  of  the  executive  resolution  of  tlie  lUth  of 
October,  1900,  declarinj^-  in:iubsistent  the  contract  of  September  22, 
IS83,  the  com])any  lost  the  protits  of  a  certain  conti'act  entered  into  by 
it  with  Charles  Richardson  and  his  associates  f(»r  the  lease  of  the  asphait 
mine  on  the  island  of  Pedernales  and  was  thereby  damaged  in  the  sum" 
of  i?  100,000. 

Third.  That  by  reason  of  said  resolution  the  company  lost  the  oppor- 
tunity of  completing"  an  ag-reement  with  Messrs.  j\loore,  Schley  6i  Co. 
for  the  exploitation  of  the  Imataca  iron  mine,  and  was  damaged  thereby^ 
in  the  sum  of  $100,000. 

Fourth.  That  tiie  compan}-  on  the  lOth  day  of  October,  1900,  had 
concluded  negotiations  with  Messrs.  Power,  Jewell  &  Dutiy,  of  Bos- 
ton, whereby  it  was  stipulated  that  for  a  certain  consideration  the  said 
parties  should  pay  into  the  treasury'  of  said  company  as  and  for  a  work- 
ing* capital  with  which  to  prosecute  its  intended  operations  on  the  con- 
cession the  sum  of  $2,800,000,  but  that  by  reason  of  the  executive 
resolution  of  October  10,  1900,  the  said  parties  refused  to  execute  the 
proposed  contract  and  abandoned  the  same,  whereb3^the  company  lost 
the  benefit  and  advantage  thereof  and  was  damaged  in  that  sum. 

Fifth.  That  if,  under  the  constitution  and  laws  of  the  Republic  of 
Venezuela,  the  resolution  of  October  10,  1900,  had  the  effect  to  divest 
said  company  of  its  rights,  titles,  and  interests  in  and  to  the  contract 
of  September  22,  1883,  the  company  was  damaged  in  the  sum  of 
$10,000,000;  and  if  it  be  otherwise  and  said  resolution  was  an  act  of 
usurped  authority  be3'ond  the  competence  of  the  executive  power,  then 
the  conjpany  was  damaged  thereby  in  the  aggregate  of  the  damages 
mentioned  as  having  been  occasioned  thereby,  but  that  the  company 
advisedh'  limits  its  claim  against  the  Republic  of  Venezuela  for  the 
damages  occasioned  by  said  resolution  of  October  10, 1900,  to  the  sum 
of  $5,000,000,  for  which  it  demands  the  judgment  and  award  of  this 
tribunal. 

Sixth.  That  if  it  be  considered  that  by  force  of  the  constitution  and 
laws  of  Venezuela  the  Orinoco  Companj^,  Limited,  has  been  divested 
of  its  rights,  titles,  and  interest  in  and  to  certain  land  and  mining  con- 
cession granted  by  the  Government  since  the  date  of  the  resolution  of 
October  10,  1900,  the  company  makes  claim  on  that  account  for  the 
reasonable  value  thereof,  which  it  alleges  upon  information  and  belief 
exceeds  the  sum  of  $1,000,000;  but  if  it  be  considered  that  the  said 
land  and  mining  concessions  are  of  no  force  or  validity  as  against  the 
elder  patent  and  paramount  title  of  said  company  under  its  conti'act, 
then  the  company  claims  only  nominal  damages  for  and  on  account  of 
the  granting  of  the  same  in  manner  and  form,  but  without  legal  effect 
upon  the  right  of  said  company  to  have  and  exploit  the  same. 

In  view  of  all  the  foregoing  I  am  of  the  opinion: 

First.  That  the  contract-concession  entered  into  on  the  22d  day  of 
September,  1883,  by  and  between  the  Government  of  Venezuela  and 
Cvrenius  C.  Fitzgerald,  granting  to  said  Fitzgerald,  his  associates, 
assigns,  and  successors,  for  the  term  of  ninety-nine  years,  the  exclusive 
right  to  develop  the  resources  of  certain  territories  therein  described, 
and  the  exclusive  right  of  establishing  a  colony  for  the  purpose  of 
developing  the  resources  already  known  to  exist  and  those  not  yet 


REPORT  OF  ROBEET  C.  MORRIS.  487 

developed  in  the  same  region  and  oth^  r  rights,  privileges,  and  immu- 
nities tlierein  specitically  enumerated,  is,  and  since  the  29th  day  of  May, 
1884,  has  been,  a  valid  subsisting  contract,  lawfully  vesting  in  the 
grantee,  Cyrenius  C.  Fitzgerald,  his  associates,  assigns,  and  successors, 
all  the  rights,  privileges,  and  immunities  in  the  said  contract  set  forth. 

Second.  That  George  Turnbull  obtained  no  rights  of  property  either 
in  the  concession  as  a  whole  under  and  by  virtue  of  the  alleged  con- 
tract of  January  1,  1886,  or  to  the  lands  and  mines  of  Pedernales  and 
Imataca  under  and  by  virtue- of  his  alleged  titles  of  1888. 

Third.  That  the  Fitzgerald  contract-concession  being  subsistent,  the 
Manoa  Company,  Limited,  is  entitled  to  an  award  general!}^  for  the 
wrongful  interference  with  and  deprivation  of  the  exercise  of  its  rights 
and  privileges  under  the  said  contract-concession  by  the  Government 
of  Venezuela  from  the  9th  day  of  September,  18S6,  tothe  18th  day  of 
June,  1895,  justly  commensurate  with  the  loss  or  injury  sustained 
thereby;  and  in  particular  to  an  award  for  damages,  however  nominal, 
for  injuries  sustained  relative  to  the  Pedernales  asphalt  mine  and  to 
the  iron  mine  of  Imataca. 

And  fourth.  That  the  Fitzgerald  contract-concession  being  subsistent, 
the  Orinoco  Company,  Limited,  is  entitled  to  an  award  generally  for  the 
wrongful  interference  with  and  deprivation  of  the  exercise  of  its  rights 
and  privileges  under  the  said  contract-concession  by  the  Government 
of  Venezuela  from  the  10th  day  of  October,  1900,  to  the  14th  day  of 
January,  1901,  justl}^  commensurate  with  the  loss  or  injury  sustained 
thereby;  and  in  particular  to  an  award  for  the  amount  paid  into  the 
national  court  of  hacienda  on  the  19th  day  of  December,  1898,  together 
with  interest  on  said  sum  at  the  rate  of  3  per  cent  per  annum  from 
said  date  to  the  31st  of  December,  1903,  the  anticipated  date  of  the 
tinal  award  by  this  Commission. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


The  United  States  of   America  on  behalf  ~ 
of  George  Turnbull.  claimant. 

V. 

The  Republic  of  \'enezuela. 


No.  45. 


The  United  States  of  America  on  behalf  i 

of  the  Manoa  Company,  Limited,  claimant,       'i  ^^  ^^ 
v. 
Thk  Republic  of  Venezuela. 


The  United  States  of  America  on   behalf 

of  the  Orinoco  Company,  Limited,  claimant, 

r. 

The  Rei'ulic  of  Venezuela. 


No.  47. 


Doctor  Grisanti,  Commissioner. 

•The  Manoa  Company,  Limited,"  sets  forth  a  claim  against  the 
Republic  of  Venezuela,  the  memorial  of  which  ends  as  follows: 

Your  orator  clainis,  liowever,  that  ]>y  tlie  effet't  thereof  as  a  nlaiider  of  its  title  to 
tlie  entire  conceHHioii  and  each  and  every  i)art  of  it,  hy  the  asnertion  immanent  in 
that  resohition  and  an  ol)vioua  ini])lication  therefrom,  that  the  title  and  riirhts  of  the 


488  llEroRT    OK    KOBERT    0.    MORRIS. 

said  company  to  its  entire  roni'ession  was  liable  at  any  time  to  be  arbitrairly  and 
sunnnarily  <liveste(l  and  anindled  in  like  manner  either  totally  or  in  fragments  at  the 
discretion"  or  caprii'c  of  the  Kxecntive  authority  and  withontdue  process  of  law;  that 
it  was  in  fact  damatjed  in  the  sum  of  !r2,000,000  and  more;  and  if  said  rv^solntion  of 
Novend)er  20,  A.  J).  189(5,  ])y  its  force  and  effect  divested  said  company  of  its  said 
ri^ht,  title,  and  interest  in  or  to  said  mine  of  Imataca  and  the  appurtenant  lands 
aforesaid,  that  it  was  damajjed  thereby  in  the  sum  of  $1,()0(),000;  but  if  it  did  not  have 
that  effect  or  operation,  then  that  said  company  was  damaged  tliereby  in  the  nominal 
sum  of  11,000. 

On  September  22,  1883,  a  contract  was  celebrated  between  the  Gov- 
ernment of  Venezuela  and  Cyrenius  C.  Fitzgerald,  approved  by  the 
National  Cong-ress  on  May  23,  1884,  whereby  was  conceded  imto  .said 
Fitzgerald,  his  associates,  successors,  and  assigns,  for  the  term  of 
ninety-nine  years,  the  exclusive  right  to  exploit  the  resources  of  the 
territories  of  national  property  referred  to  in  article  1  of  said  contract; 
as  also  the  exclusive  right  for  the  same  term  to  establish  a  colony,  to 
develop  the  resources  known,  and  also  those  as  yet  not  exploited  in 
said  region,  including  asphalt  and  coal;  for  the  purpose  of  establishing 
and  cultivating  on  as  high  a  scale  as  possible  agriculture,  breeding  of 
cattle,  and  other  industries  and  manufactures  which  ma}"  be  considered 
suitable,  setting  up  for  the  purpose  machinery  for  working  the  raw 
material,  exploiting  and  developing  to  the  utmost  the  resources  of  the 
colony. 

Fitzgerald  undertook  to  commence  the  work  of  colonization  within 
six  months,  counting  from  the  date  when  said  contract  was  approved 
by  the  Federal  council  (art.  5) — that  is  to  say,  from  the  date  of  its  being 
granted  (September  22, 1883) — the  Government  having  promised  that, 
if  in  its  judgment  it  should  be  necessar}^,  it  should  grant  to  the  con- 
tractor a  further  extension  of  six  months  for  commencing  the  said 
works  (art.  10). 

On  the  7th  day  of  February,  1884,  Dr.  Herbert  Gordon,  acting  as 
Mr.  Fitzgerald's  attorney,  requested  that  said  Mr.  Fitzgerald  should 
be  conceded  the  further  extension  of  time  referred  to  in  said  article 
10;  and  by  resolution  of  the  19th  of  the  same  month  it  was  so  con- 
ceded, to  be  counted  from  the  22d  of  the  following  March. 

In  the  course  of  said  extension  of  time — on  the  14th  of  June,  1884 — 
Fitzgerald  assigned  the  contract  to  "The  Manoa  Company,  Limited," 
and  on  April  10,  1886,  seven  months  and  ten  days  after  said  extension 
had  elapsed.  Doctor  Gordon,  attorney  for  said  company,  addressed  a 
petition  to  the  minister  of  agriculture  (fomento),  the  last  part  of  which 
(pages  64,  65,  and  66  of  the  record)  is  as  follows: 

Therefore,  in  compliance  with  instructions  given  me  by  the  Manoa  Company, 
Limited,  I  beg  to  apply  to  the  Benemerito  General  President  of  the  Republic,  through 
your  respectable  organ,  beseeching  him  most  entreatingly  and  urgently  to  declare, 
by  resolution,  that  to  "  the  Manoa  Company,  Limited,"  are  not  imputable  the  circum- 
stances which  have  prevented  it,  up  to  the  present,  from  carrying  out  its  words  in 
accordance  with  the  contract  celebrated  between  the  Government  and  C.  C.  Fitz- 
gerald on  September  22,  1883,  of  which  it  is  an  assignee;  and  that,  therefore,  said 
contract  is  in  force  and  the  company  is  in  possession  of  all  its  rights,  as  in  the  exten- 
sions accorded  will  not  be  computed  the  time  elapsed  up  to  the  present. 

Throughout  all  of  said  solicitude,  and  particularly  in  the  above- 
in.serted  paragraph,  the  Manoa  Company  (Limited)  confesses  through 
its  attorney.  Doctor  Gordon,  that  at  that  date  (April  10,  1886),  a  long- 
time after  the  extension  had  expired,  it  had  not  commenced  to  fultill  the 
contract,  and  likewi.se  admits  considering  it  annulled.  And  considering 
only  in  fact  that  the  company  held  such  an  opinion,  can  it  be  accounted 
for  that  the  company  should  request  the  Government  to  promulgate  a 


REPORT  OF  ROBERT  C.  MORRfS.  489 

resolution  declaring:  That  the  causes  which  Jiad  prevented  it  from  carry- 
ing out  the  contract  are  not  imjnitahle  to  it;  that^  therefore^  the  contract 
is  in  force  and  the  company  in  possession  of  all  its  rights^  as  in  the 
extensions  accorded  will  not  he  comjnded  the  time  elapsed. 

The  above-mentioned  petition  was  followed  on  September  9  by  this 
resolution,  to  wit: 

Resolved,  Seiior  Heriberto  Gordon,  with  power  from  Senor  C.  C.  Fitzgerald,  cele- 
brated on  the  22d  of  September,  1883,  with  the  National  Government,  a  contract  for 
the  exploitation  of  the  riches  existing  in  lands  of  national  property  in  the  Grand 
Delta,  and  the  works  ought  to  have  been  begun  within  six  months  of  the  aforesaid 
date.  In  spite  of  such  time  having  elapsed  without  commencing  said  works  the  Gov- 
ernment granted  him  an  extension  of  time  for  the  purpose,  and  inasmuch  as  said 
contractor  has  not  fulfilled  the  obligations  which  he  contracted,  as  stated  in  the 
report  of  the  director  of  territorial  riches,  specifying  in  reference  to  article  5  of  the 
contract  in  question,  the  councillor  in  charge  of  the  Presidency  of  the  Republic  hav- 
ing the  affimative  vote  of  the  Federal  council  declares  the  insubsistency  or  annulment 
of  the  aforesaid  contract. 

In  any  other  case  the  lawfulness  of  said  resolution  would  be  doubt- 
ful, but  in  the  present  one  it  is  not,  tirstly,  because  the  Manoa  Com- 
pany, Limited,  has  authentically  declared  the  facts  whereon  it  is  based; 
secondly,  because  said  company  tacitly  acknowledged  the  annulment, 
of  the  contract,  and,  lastly,  because  the  company  itself  made  the 
National  Government  a  judge  as  to  the  enforcement  or  termination  of 
the  contract  when  requesting  it  to  declare  the  enforcement  of  said  con- 
tract whereby  it  authorized  the  Government  ipso  facto  to  promulgate 
its  annulment. 

As  an  explanator}^  argument  of  the  unlawfulness  of  the  above- 
inserted  resolution  quotation  is  made  of  the  judgment  passed  by  the 
high  federal  court  on  August  23,  189S,  declaring  the  insubsistency 
and  nullity  of  the  Executive  resolution  of  January  4  of  said  year,, 
whereby  the  contract  of  the  "New  York  and  Bermudez  Company'" 
was  declared  terminated  and  void. 

Without  discussing  said  decision,  which  in  our  opinion  is  erroneous^^ 
as  shown  b}"  the  reasonings  contained  in  the  voto  salvado  of  three  of 
the  judges  (Official  Gazette,  No.  7421,  dated  September  IT,  1898),  we 
shall  circumscribe  to  establish  that  the  case  of  the  "New  York  and 
Bermudez  Company,"  and  that  of  the  Manoa  Company,  Limited,  are 
entirely  diflerent;  whereas  the  claimant  company,   in  the  aforemen- 


and  Bermudez  Company"  did  not  make.  And  the  most  obvious  evi- 
dence of  the  difierencebetween  the  two  cases  is  that  the  Manoa  Com- 
pany, Limited,  did  not  apply  to  the  high  federal  court  to  request  that 
t!io  resolution  of  September  9,  188(),  ho  declared  void. 

The  Manoa  Company,  Limited,  alleges  as  th<^.  principal  cause  for  pre- 
venting it  from  fultilling  the  obligations  coiiti'acted,  the  British  authori- 
ties were  apt  to  hiiidei-  its  use  and  full  ])ower  over  a  considerable  por- 
tion of  the  territory  marked  out  in  aiticle  1  of  the  contract. 

In  an  article  inserted  in  Lhe  E\(>ning  Bost,  New  York,  dated  Feb- 
ruary 10,  189<),  we  find  the  following  account : 

Mr.  Fitzgerald  especially  attributes  the  subsequent  misfortunes,  decadence,  and 
collapse  of  the  Manoa  Goiiijjany  solely  to  the  Hritish  invasion. 

But  tliere  are  some  pccnHar  facts  in  this  conncclion.  Mr.  Fitzgerald,  when 
requested  to  jjoint  out  on  the  ina])  the  lo(;ation  of  the  sawmill,  indicated  it  as  above 
specified.     Now,  that  particular  spot  is  U)  the  westward  of  thcSchonibnrgk  line,  and 


490  KKPOKT  OK  KOHKKT  0.  MORKIS. 

ovoryono  familiar  witli  tiio  {icofjraphical  asj)et^ts  of  British  claims  in  the  Guiaiiii 
•  Diitroversy  knows  that  they  never  extended  in  the  interior  so  far  as  to  approach 
any  part  of  the  I'onrse  of  the  Orinoco  River. 

^lorettver,  the  AngU)-V(Mieznelan  diplomatic  correspondence  appertaining  to 
McTnrk's  proceedings  of  1SS4  shows  that  his  assertion  of  British  jurisdiction  did  not 
extend  farther  west  than  the  Amacuro  River,  i.  e.,  the  coast  limit  of  the  Schombnrgk 
line,  (ni/man  Blanco,  as  Venezuela's  plenipotentiary  in  London,  reviewed  in  a 
note  to  Lord  Salislniry  dated  July  28,  ISHH,  all  the  circumstances  of  the  McTurk 
affair;  and  in  it  there  is  no  allusion  to  forcible  British  acts  west  of  Amacuro.  In  his 
conimunicatiou  (iuzman  Blanco  cites  a  note  w^ritten  by  McTurk  from  the  right  hank 
of  till'  Aniiicuro  to  Mr.  Thomas  A.  Kelly,  resident  manager  of  the  Manoa  Company, 
stdtiiK)  (hat  he  (McTurk)  had  received  notice  that  the  company  tvas  going  to  erect  a  saw- 
mill at  the  month  of  the  Barimn  and  warning  him  against  such  encroachment.  This 
seems  to  establish  that  the  British  Government's  interference  with  the  Manoa  Com- 
pany in  1884  had  in  view  only  the  prevention  of  the  comxiany's  intended  programme 
fi.r  intrusion  east  of  the  Schomburgk  line,  and  involved  no  interference  with  the 
sole  ini])rovenients  made  by  the  comjjany  up  to  that  on  the  grant. 

.\ccordingly  there  was  nothing  to  deter  the  Manoa  corporation  from  pushing  for- 
ward its  niercantile,  agricuJtund,  commercial,  viannfactnring,  shipping,  andmitving  bust- 
uess  in  territory  exclusively  Venezuelan,  with  the  Orinoco  sawmill  settlement  as  a 
basis.  Besides,  the  really  valuable  portions  of  the  concession  for  the  purposes  of 
immediate  development  (including  the  Pedernales  asphalt  property)  were  those 
which  lay  to  the  west  of  the  Schomburgk  line,  and  which  could  have  been  worked 
in  absolute  security  of  ownership  under  the  laws  or  Venezuela. 

All  affidavit  of  Mr.  Jerome  Bradley*,  ex-president  of  tlie  Manoa 
"Company,  Limited,  rendered  on  October  21,  1886,  filed  at  the  United 
States  circuit  court  of  Brookl}^!  (case  of  P^verett  Marshall  v.  The 
Manoa  Company  et  al.)  reads  as  follows,  to  wit: 

I  have  read  the  affidavit  of  0.  C.  Fitzgerald,  verified  July  30,  1887.  It  is  untrue 
that  I  w'as  informed  by  his  (Fitzgerald)  son  George,  upon  thelatter's  return  from 
Venezuela,  that  the  lumbering  operations  upon  said  grant  were  discontinued  in  1884, 
owing  to  the  interference  of  the  British  Government  claiming  the  territory,  but,  on 
the  contrary,  I  allege  that  the  same  were  discontinued  for  the  reason  that  the  Manoa 
Company  did  not  pay  and  had  not  the  means  to  pay  the  few  men  employed  by  them 
to  cut  lumber  and  transport  it  to  the  sawmill.  That  the  sawmill  spoken  of  was  not 
upon  that  portion  of  said  grant  to  wdiich  a  claim  was  made  by  the  British  Govern- 
ment. The  said  sawmill  was  distant  from  that  portion  of  the  grant  over  50  miles. 
'(Taken  from  an  insertion  of  -Mr.  Turnbull,  appended  to  this  claim.) 

This  shows  that  the  British  invasion  is  only  a  pretext  alleged  by  the 
•claimant  company  so  as  to  conceal  the  real  cause  of  its  collapse,  which 
was  its  inability  to  raise  funds  for  commencing  the  works  of  coloniza- 
tion and  fulfilling  the  other  obligations  to  which  it  was  bound  under 
the  contract.  Moreover,  the  company  never  protested  against  the 
;aforementioned  resolution  (although  said  company  asserts  to  the  con- 
trary), nor  applied  to  the  Federal  court  to  demand  its  annulment. 
Said  company  was  well  aware  that  on  lawful  grounds  it  was  at  a  loss, 
that  the  Executive  act  was  based  on  true  facts,  and  in  conformity  with 
justice. 

On  January  1,  1886,  Gen.  Guzman  Blanco,  envoy  extraordinary  and 
minister  plenipotentiary  of  Venezuela  to  various  courts  of  P^urope, 
•celebrated  a  contract  on  behalf  of  Venezuela  with  Mr.  George  Turn- 
bull,  the  same  as  that  as  the  Manoa  Company,  Limited;  but  said  con- 
tract besides  requiring  for  its  legal  validity  the  approval  of  the 
President  of  the  Republic,  with  the  affirmative  vote  of  the  Federal 
council,  as  also  the  sanction  of  Congress  (article  QQ^  attribution  6th 
•of  the  constitution  of  1881),  in  article  12  stipulates  as  follows: 

This  contract  shall  enter  into  vigor  in  case  of  the  becoming  void,  through  failure  of 
■compliance  within  the  term  fixed  for  this  purpose  of  the  contract  celebrated  with 
Mr.  Cyrenius  C.  Fitzgerald,  the  22d  of  September,  1883,  for  the  exploitation  of  the 
same  territory. 


REPORT  OF  ROBERT  C.  MORRIS.  491 

The  referred-to  ccntract  was  approved  In*  the  Federal  council  on 
September  1<>.  Issij.  and  In-  Congress  on  April  28, 1887;  that  is  to  ^ay, 
after  the  Manoa  Company's  contract  becoming  void;  therefore  the 
Turnbull  contract  did  not  deprive  said  company  of  the  rights  it  had 
forfeited  and  which  the  Republic  of  Venezuela  had  newly  acquired. 

On  June  18.  189.5,  and  at  the  request  of  the  Manoa  Company,  Lim- 
ited, the  National  Government  issued  a  resolution  ordering  that — 

Due  authorization  l)e  given  to  the  said  Manoa  Company,  Limited,  within  six 
months,  reckoning  t'rom  the  date  of  this  resolution,  to  renew  its  works  of  exploitation 
in  order  to  the  greater  development  of  the  natural  riches  of  the  territories  embraced 
in  said  concession,  hereby  confirming  it  in  all  its  rights  stipulated  and  granted  to 
C.  C.  Fitzgerald  by  the  contract  of  September  22,  1883;' and  the  said  Manoa  Company, 
Limited,  shall  be  bound  to  report  to  the  National  Executive  from  time  to  time, 
through  the  organ  of  this  ministry,  of  all  and  every  work  done  by  it  in  execution  of 
said  contract,  in  order  that  the  Government  maybe  enabled  to  judge  of  its  compliance 
with  the  obligations  of  said  contract,  in  conformity  with  the  spirit  and  the  magnitude 
of  its  stipulations. 

The  contract  of  the  Manoa  Company.  Limited,  being  insusbistent 
through  its  not  complying  with  the  obligations  thereunder,  and 
also  in  view  of  the  contents  of  the  Executive  resolutions  dated 
September  10,  1886.  could  not,  in  virtue  of  the  Executive  reso- 
lution already  inserted,  revive  said  contract,  but  had  to  be  issued 
anew  in  conformity  with  the  national  constitution  of  1893;  that  is  to 
say.  that  it  had  to  be  celebrated  by  the  President  of  the  Republic  with 
the  atiirmative  vote  of  the  Government  council  and  with  the  approval 
of  Congress.  Article  44  of  the  cited  constitution,  which  establishes 
the  duties  of  Congress,  contains,  under  No.  16,  the  following: 

To  approve  or  deny  such  contracts  of  national  interest  as  the  President  of  the 
Union  mav  have  celebrated,  and  without  which  they  can  not  be  carried  out  into 
effect. 

The  Executive  resolution  of  July  18,  1895.  was,  and  is,  absolutely 
inefficacious  for  giving  existence  to  a  contract  that  had  become  void 
ten  years  Vjefore. 

The  claimant  companv  presents  as  a  proof  of  the  subsistence  of  its 
contract  a  resolution  issued  by  the  minister  of  fomento  on  February 
26,  1886,  which  in  no  wi.se  refers  to  said  contract,  but  to  another,  as  I 
shall  forthwith  show.     Hence  the  text  of  the  resolution: 

United  States  of  Venezuela, 
^IiM.sTRY  OF  Fomento,  Direction  of  Territorial  Kiches, 

Caracas,  February  26,  1886. 
(Year  22  of  the  Law  and  27  of  the  Federation.) 
Resolved,  In  view  of  the  petition  of  Citizen  HeriVjerto  Gordon,  as  attorney  to  C.  C. 
Fitzgerald,  assignee  of  the  contract  for  colonization  and  exploitation  of  apart  of  the 
waste  lands  of  the  former  State  of  (iuayana,  celebrated  on  May  21,  1884,  the  Presi- 
<lent  of  the  Rei>u1)lic,  with  the  vote  of  the  Federal  council,  has  resolved,  that  for 
the  effects  of  the  extensions  of  time  fixed  for  the  performance  of  said  contract,  the 
time  elapsed  since  the  Uth  of  June,  1885,  up  to  this  day  be  not  coniputed,  and  that 
<'onsequently  the  mentioneil  contract  continue  in  force  and  the  concessionaire  is  in 
possession  of  all  his  rights. 
Let  it  be  published. 
For  the  Federal  Executive. 

(Signed)  J.  V.  Guevara. 

This  resolution  refers  to  the  contract  celebrated  ])y  Dr.  Heriberto 
Gordon  on  his  own  behalf  for  colonizing  the  waste  lands  situated  in 
the  former  State  of  Guayana,  which  are  comprised  within  the  limits 
expressed  in  article  1. 

The  Manoa   contnicr   was   cclcljiutcd   on   S('])t('inber  22.   1883.  and 


492  REPORT  OF  ROBERT  C,  MORRIS. 

approved  by  tlio  National  Conoress  on  May  28,  1884;  the  Gordon 
contract  was  celol)rated  on  May  20,  1884,  and  its  approval  by  the  leg- 
islature took  place  on  the  12th  of  June  of  the  same  year. 

Owin<?  no  doubt  to  a  mistake  which  I  have  corrected,  the  claimant 
company  has  adduced  the  mentioned  resolution  as  evidence. 

"•The  ]\lanoa  Company  "  considers  itself  as  beinjif  the  owner  of  the 
Imataca  iron  mine  and  "the  Pedernales  asphalt  mine,  alleging  such 
ownership  in  view  of  article  4  of  the  contract;  and  whereas  in  1888 
the  Government  of  the  Republic  conceded  the  definite  title  to  said 
mines  to  Mr.  George  TurnbuU,  who  previously  fulfilled  the  formal- 
ities of  law  in  force  at  the  time,  said  company  pretends  to  be  dispos- 
sessed, and  on  the  ground  of  so  erroneous  an  opinion  lays  one  of  its 
claims. 

The  memorial  states  as  follows: 

Afterwards,  on  or  about  the  13th  day  of  March,  A.  D.  1888,  the  authorities  of 
the  RepubUc  conceded  and  issued  to  said  Turnbull,  in  form  of  law,  but  without 
right,  the  definite  title  to  the  said  iron  mine  of  Imataca;  and  afterwards  on  the  2Sth 
day  of  June  of  that  year  thev  conceded  and  issued  unto  him  in  like  manner  and 
form  the  definite  title  to  said"  mine  of  asphalt;  and  afterwards  put  said  cessionaire 
in  possession  thereof  and  of  the  lands  comprising  the  superficial  area  of  the  same 
and  intended  for  their  use  in  the  exploitation  thereof,  the  definite  title  of  which 
lands  also  said  authorities  about  the  same  time  conceded  to  said  Turnbull. 

All  of  said  arbitrary  acts  and  doings  were  accomplished  without  notice  to  said 
company  or  other  process,  legal  proceeding,  or  opportunity  to  them  to  be  heard, 
and  were  in  manifest  derogation  of  its  rights. 

The  basis  which  the  claimant  company  pretends  to  have  for  the 
series  of  mistakes  contained  in  the  two  foregoing  paragraphs  is  article 
4  of  the  contract,  to  wit: 

Article  4. 

A  title  in  conformity  with  the  law  shall  be  granted  to  the  contractor  for  every 
mine  which  may  be  discovered  in  the  colony. 

The  claimant  company  holds  that,  in  virtue  of  said  clause,  every 
mine  discovered  in  the  territory  described  in  article  1  of  the  contract 
belongs  to  it,  whoever  the  discoverer  may  be — a  gross  absurdity, 
which  baffling  interest  alone  could  have  led  the  claimant  company  to 
believe.  The  Government  of  Venezuela  undoubtedly  celebrated  the 
contract  which  is  being  subject  to  analysis  with  a  view  to  develop  the 
natural  riches  and  colonization  of  the  nientioned  territory,  and  accord- 
ing to  the  curious  meaning  given  to  article  4  l>y  the  company  the  ex- 
ploitation of  the  mines  depended  exclusively  on  their  will,  so  that  if 
said  company  did  not  wish  to  discover  any,  nobody  could  denounce 
one,  even  if  he  discovered  it. 

Furthermore,  the  article  provides  that  a  title  should  be  granted  in 
conformity  with  law  to  the  enterpriser  on  every  mine  he  discovered, 
that  is  to  say  that  if  the  company  discovered  a  mine,  it  had,  in  order 
to  obtain  said  title,  to  comply  with  the  legal  formalities. 

Since  1883,  when  the  Manoa  contract  was  signed,  up  to  1887,  when 
Turnbull  o})tained  his  title  to  the  iron  mine  of  Imataca  and  to  the 
asphalt  mine  of  Pedernales,  tive  mining  codes  were  in  force  in  Vene- 
zuela, to  wit:  One  of  iVIarch  13,  1883;  one  of  November  15,  1883;  one 
of  May  23,  1885;  one  of  May  30,  188T,  and  an  organic  decree  of  the 
latter  issued  on  August  3,  1887. 

All  of  said  codes  are  based  on  the  principle  that  mines  are  the 
property  of  the  State  wherein  they  are  situated,  the  administration 
alone  of  the  same  being  in  charge  of  the  Federal  Executive;  therefore 


REPORT  OF  ROBERT  C.  MORRIS.  493 

it  has  to  be  taken  for  g-ranted  that  who.eoever  wishes  to  exploit  a  mine, 
even  he  who  discovers  the  same  on  his  own  grounds,  must  previously 
obtain  a  corresponding  title  thereto.  For  such  obtainmeut  the  follow- 
ing formalities,  briefly  stated,  have  to  be  complied  with: 

AVhoever  mav  intend  to  exploit  mine?  shall  notify  the  president  of  the  State  or 
the  governor  of'the  Territory  wherein  the  mines  discovered  are  located,  so  that  they 
may  be  entered  in  the  register  which  must  be  kept  by  the  secretaries  of  said  func- 
tionaries (art.  11). 

The  petition  for  a  concession  shall  be  published  once  only  in  thg 
Official  Gazette  of  the  State  or  Territory,  as  the  case  may  be,  or  ij^ 
default  thereof  in  the  paper  of  largest  circulation,  or  if  the  latte^. 
neither  exists,  it  will  suffice  to  post  placards  or  advertisements  in  th^ 
municipality  where  the  mines  are  located,  during  thirty  days  (art.  12)^ 

In  every  petition  for  mines,  addressed  to  the  president  of  the  State  or  to  the  tjov- 
ernor,  accordingly,  the  number  of  mines  requested  must  be  expressed,  as  also  the 
district,  municipality,  or  colony  wherein  such  are  contained;  if  these  are  not  private, 
municipal,  or  waste"  lands,  the  name  must  be  stated  of  the  engineer  or  public  sur- 
veyor who  is  to  measure  them  and  make  out  the  plans,  which  acts  will  take  place 
after  having  published  a  notice  to  that  effect  in  the  press,  in  order  to  inform  the  adja- 
cent neighbors  thereof  so  that  they  may  assist  at  said  acts.  Plans  rnade  only  by 
engineers  or  surveyors  having  a  title  will  be  considered  authentic  and  will  alone  pro- 
duce legal  effect  in  the  matter  of  mensuration  and  plans  contained  in  the  records  of 
mines  (art.  16). 

Once  the  mensuration  takes  place,  the  record,  together  with  the 
plans  made,  is  turned  over  to  the  mining  inspector  for  him  to  verify 
the  acts,  which  in  its  turn,  and  in  addition  to  his  report,  is  all  forwarded 
to  the  ministry  of  fomento  (art.  17).  Thereupon,  and  in  view  of  the 
record  and  its  merits,  the  National  Executive  decides  as  to  whether  it 
will  or  will  not  grant  the  concession  (art.  19). 

The  Manoa  Compan}',  Limited,  should  have  complied  with  all  said 
formalities  in  order  to  obtain  a  title  to  the  aforesaid  mines,  and  it  did 
not  do  so.  The  only  judicial  efi'ect  which  can  be  attached  to  article  1 
of  the  contract  is  the  right  of  the  company  to  be_  preferred  when  in 
competition  with  any  other  discoverer,  in  conformity  with  articles  13, 
1-1,  and  15  of  the  referred-to  law. 

Article  13  provides  that — 

Those  who  think  to  have  a  right  to  oppose  others  who  have  petitioned  for  mining 
concessions  in  virtue  of  the  preceding  articles  may  present  their  petitions  to  the 
president  of  the  State  or  to  the  governor  of  the  Territory.  These  petitions  will  be 
registered  in  the  same  order  of  their  pre.sentation,  stating  the  day  and  hour  thereof, 
and  the  only  notification  to  the  parties  concerned  therein  will  be  published  in  the 
Official  Gazette  three  times  in  the  course  of  a  month,  or  placards  and  advertise- 
ments will  be  posted  as  mentioned  in  the  foregoing  article. 

On  the  expiration  of  said  thirty  days,  and  the  formalities  provided  in  the  preced- 
ing arti(!les  having  been  fulfilled,  the  President  or  governor,  as  the  case  may  be,  will 
decide  with  regard  to  the  petitions  for  concessions,  and  his  resolution  will  refer  also 
to  the  merits  of  oppositions,  if  such  op[)ositions  have  been  made. 

After  said  decision  has  ])een  given,  noopf>ositions  will  be  admitted  and  the  favored 
party  or  parties  will  be  authorized  by  the  President  or  governor,  accordingly,  to  pro- 
ceed" to  the  exploration  and  other  jireparatory  acts  required  for  putting  the  record  in 
a  condition  to  be  considered,  and  to  enable  him  to  i-ssue  or  deny  a  title  of  concession, 
reporting  the  same  to  the  National  Executive  (art.  15). 

The  provisions  quoted  are  those  of  the  law  of  November  15,  1885. 

If,  as  before  stated,  whenever  a  person  discovers  a  mine  in  his  own 
territory,  he  nuist,  in  order  to  obtain  a  title  thereto,  comply  with  the 
formalities  provided  under  the  respective  law,  all  the  more  reason  why 
the  claimant  c<)iii|)any  should  have  complied  with  the  same  is  that 
under  the  contract  ol"" September  22,  1883,  no  other  right  to  the  terri- 


494  REPORT  OF  ROBERT  C.  MORRIS. 

tory  designated  in  article  i  was  conceded  to  it  tlian  that  of  exploiting- 
the  natural  riches  therein  contained. 

In  the  opinion  of  the  Venezuelan  Commissioner,  a.s  the  claimant 
company  has  no  title  of  ownership  of  the  aforesaid  mines  nor  made 
any  opposition  to  Turn))ull  when  lie  attempted  to  accpiire  them,  the 
claim  of  said  company  in  regard  to  such  mines  is  al>solutely  groundless. 

The  iSIanoa  Company,  Limited,  has  not  shown  that  it  fulfilled  the 
obligations  imposed  under  the  contract  of  September  22,  1883.  and 
consecpiently  it  is  deprived  of  any  right  to  claim  for  losses  sustained 
through  the  annulment  of  said  contract.  In  etfect  it  would  be  the 
most  liagrant  violation  of  equity — which  has  to  be  the  basis  for  the 
decisions  of  this  tribunal — to  acknowledge  the  rights  which  a  contract 
concedes  to  a  contractor  without  considering  that  said  contractor  has 
not  fulfilled  the  obligations  he  was  under,  and  that  these  are  correla- 
tive to  said  rights. 

Lastly,  The  Manoa  Company,  Limited,  raises  its  claim  to  the 
exorbitant  amount  of  $2,000,000,  without  producing  the  slightest  evi- 
dence to  prove  that  the  losses  alleged  amount  to  that  sum.  lam  firml}' 
convinced  that  this  high  tribunal  has  to  be  extremely  exigent  and 
conscientious  in  examining  and  appreciating  the  evidence  produced 
in  support  of  claims,  as  otherwise  it  might  inadvertently  seiTe  the 
unbounded  avarice  of  unscrupulous  claimants. 

GEORGE   TUKNBULL. 

Let  us  now  analj^ze  Mr.  Turnbull's  claims. 

One  is  for  $500,000,  at  which  amount  the  plaintiff  reckons  the  dam- 
ages and  losses  which  a  judicial  proceeding  against  the  Orinoco  Iron 
Syndicate  caused  him. 

'This  part  of  the  claim  is  perfectly  groundless,  as  the  said  proceeding 
was  quite  legal,  and  the  most  decided  and  efficacious  protection  was 
tendered  by  the  Government  of  Venezuela  to  Mr.  George  TurnbuH's 
interests. 

At  the  national  court  of  finance  at  Ciudad  Bolivar  a  judgment  of  con- 
fiscation was  given  against  the  English  schooner  yewBdij^  of  which  the 
captain  was  John  W.  Baxter,  on  account  of  having  discharged  at  Manoa 
a  cargo  that  had  been  transshipped  at  Barl)ados  from  the  steamers 
Java,  Yucatan,  We!<t  Indian,  q.\\&  .S>Ae/Y^^V/f^,  and  which  cargo  had  been 
shipped  at  London  and  Liverpool  by  the  Orinoco  Iron  Syndicate,  Lim- 
ited, to  the  port  of  Ciudad  Bolivar^  addressed  to  that  same  company, 
the  manager  of  which  was  Mr.  George  TurnbuU.  And  whereas  Manoa 
is  not  a  port  authorized  for  foreign  trad(\  nor  had  the  schooner  obtained 
a  permit  to  discharge  goods  therein,  the  fact  was  denounced  at  the 
national  court  of  hacienda,  and  said  court  in  the  exercise  of  its  legal 
duties  passed  the  corresponding  judgment  thereon.  Said  judgment 
having  been  iinally  determined,  a  sentence  was  delivered  declaring  that 
the  schooner  New  Day  together  with  its  boat  tackle  and  other  appurte- 
nances were  liable  to  the  penalty  of  confiscation,  as  also  was  the  cargo 
discharged  at  Manoa,  in  conformity  with  No.  6,  Article  I,  law  21,  of 
the  Code  of  Hacienda,  to  wit: 

Article  1.  The  objects  which  are  liable  to  the  penalty  of  contiscation  are  those 
included  in  each  of  the  following  cases: 
1st.     *    *    * 
2nd.     *    *    * 
3rd.     *    *    * 
4th.     *    *    * 
5th.     *    *    * 


REPORT  OF  ROBERT  V.   MORRIS.  495. 

6th.  The  cargo  of  any  ship  for  which  attempr'.s  are  made  to  load  or  unload,  or  which 
is  found  to  be  loading  or  unloading,  or  which  has  already  been  loaded  or  unloaded  at 
ports  not  authorized  therefor,  or  on  the  coasts,  bays,  creeks,  rivers,  or  desert  islands, 
without  the  permit  and  authorization  of  the  proper  law,  and  the  ship,  tackle,  and 
other  appurtenances  will  incur  in  the  same  penalty,  as  will  also  the  canoes,  boats, 
barges,  or  other  sailing  means  which  may  have  been  made  use  of. 

That  same  judgment  condemned  Capt.  John  W.  Baxter  to  pay,  man- 
comun  et  in  solidum  with  "The  Orinoco  Iron  Syndicate,  Limited"  as 
the  owner  and  shipper  of  the  cargo,  the  fiscal  duties  in  addition  to  the 
double  of  those  duties,  etc.,  etc.  Said  condemnation  is  contained  in 
the  provisions  of  No.  3,  article  2  of  the  cited  law  21,  to  wit: 

Akt.  2.  Besides  the  loss  of  the  goods  or  other  articles  which  have  been  caused  the 

judgment  for  declaring  confiscation,  and  of  the  ships  or  other  saihng  conveyances, 

carriages,  beasts  of  burden,  and  appurtenances,  as  the  case  may  be,  the  transgressors 

will  incur  the  following  penalties: 
-[^g^      *    *    * 

2nd.     *    *    * 

3rd.  In  case  6  the  captain  of  the  ship  will  pay  a  fine  in  mancomum  et  in  solidum  with 
the  owner  of  the  goods  and  the  shippers  or  unloaders  of  the  same,  amounting  to 
double  the  customs  duties,  and  the  captain  will  be  imprisoned  for  a  term  of  from 
six  to  ten  months. 

The  above-quoted  sentence  was  confirmed  by  the  high  federal  court 
in  the  following  terms: 

The  minutes  of  the  procedure  having  been  analyzed  by  this  department,  it  is  noted: 
That  the  evidence  clearly  shows  that  the  facts  denounced  by  the  administrator  of  the 
custom-house  at  Ciudad  Bolivar;  that  all  the  extremities  of  law  have  been  correctly 
complied  with;  that  the  sentence  has  not  been  applied  for;  that  therein  the  penal- 
ties of  law  have  been  enforced,  and  that  the  fisc  is  not  prejudiced,  wherefore,  in 
conformity  with  paragraph  2,  article  34  of  the  law  of  confiscation  administrating 
justice,  authorized  thereto  by  the  law,  this  procedure  is  approved  in  all  its  parts. 
(Official  (tazette.  No.  6829,  October  2,  1896.) 

This  sentence  effected,  and  as  the  value  of  the  ship  and  cargo  did 
not  suffice  to  cover  the  penalties  imposed,  the  rights  acquired  for 
exploitation  of  the  iron  mine  of  Imataca  by  "The  Orinoco  Iron  Syndi- 
cate, Limited,"  ^vere  denounced  and  offered  for  sale. 

Mr.  TurnhuU,  finding  his  ownership  over  the  Imataca  mine  endan- 
gered in  view  of  the  aforesaid  sale,  applied  to  the  Government  request- 
ing protection  to  his  rights,  and  it  was  thus  forthwith  and  most  fully 
accorded  in  a  resolution  issued  on  December  10,  1898,  by  the  ministry 
of  agriculture,  industry,  and  commerce  (the  name  at  that  time  of  the 
ministry  of  fomento)  with  that' view,  as  affirmed  by  the  claimant  him- 
self in  his  memorial.  ^.       •  i 

Said  resolution  was  telegraphed  to  the  judge  of  hacienda  at  Ciudad 
Bolivar,  but  arrived  after  the  sale  of  the  aforementioned  rights  of 
exploitation  had  taken  place.  TurnbuU  appealed  to  the  court  against 
the  sale  and  the  federal  court  decided  that  the  ai)peal  was  unlawful. 

Subseciiientlv,  Turnbull  sued  Messrs.  Benoni  Lockwood,  jr.,  and 
the  Orinoco  CoinY)anv,  Limited,  before  the  primary  court  of  the  fed- 
eral district  for  damages  and  losses  through  their  bidding  at  the  sale 
of  his  Imataca  mine,  and  furthermore  sued  said  company  for  the 
annulment  of  the;  definite  title  derived  from  the  sale.^  ^  On  June  7, 1900, 
a  sentence  was  passed  on  this  case  declaring  that  "The  Orinoco  Com- 
pany, Limited,  had  nothing  to  claim  against  him  (Turnbull)  nor  had 
it  any  rights  to  claim  on  his  Imataca  mine,  with  regard  to  the  title 
already  mentioned." 

The  reasons  assigned  and  the  documents  quoted  prove  most  evidently 
that  Mr.  George  Turnbull  has  no  right  whatever  to  demand  anything 


496  REPORT  OF  ROBERT  C.  MORRIS. 

of  the  Government  of  Venezuela  on  uccount  of  the  ehiim  analyzed. 
On  the  contrary,  the  (xONernnient  of  the  Repuhlic  always  readily 
applied  to  protect  Mr.  Turnbuirs  interests.  In  order  that  tliis  claim 
might  be  partially  legal,  it  would  have  been  necessary  that  the  claim- 
ant had  acknowledged  that  the  sentence  passed  on  the  Orinoco  Iron 
Syndicate,  Limited,  by  the  national  court  of  hacienda  at  Ciudad  Bolivar, 
and  contirmed  bvthc  high  federal  court,  was  notoriously  unjust  or  was 
a  denial  of  justice;  this  Mr.  Turnbidl  has  not  even  attempted  to  do, 
iind  if  ho  had,  it  would  have  been  ihipossible  for  him  to  prove  it,  as 
.said  sentence  is  entirely  in  conformity  with  Venezuelan  laws. 

Mr.  George  TurnbuU  alleges  that  "his  having  been  deprived  of  the 
Imataca  mine  since  the  annulment  of  his  contract  (resolution  of  June 
18,  1895)  until  his  said  Imataca  mine  was  excluded  from  such  annul- 
ment (resolution  of  November  10,  1895)  impeded  him  from  celebrating 
any  contract,  and  from  developing  and  receiving  the  benefits  of  the 
mines,  and  that  thereby  he  lost  1-10,000  bolivars. 

Turnbull  ascribes  the  aforesaid  loss  to  the  fact  that  "The  Orinoco 
Iron  Syndicate,  Limited,"  rescinded  its  contract  celebrated  with  him  for 
exploiting  the  Iriiataca  mine.  This  assertion  is  denied  by  the  authentic 
facts  which  were  related  whilst  analyzing  those  alleged  as  the  grounds 
for  the  former  claim.  In  fact,  it  is  evident  that  the  above-mentioned 
svndicate  did  not  rescind  its  contract  on  account  of  the  reasons  assigned, 
but  that  it  dispatched  the  schooner  New  Day  to  Manoa  with  machinery 
and  otlier  articles  necessary  for  making  assays  for  the  exploitation  of 
the  Imataca  mine,  but,  as  said  ship  was  found  to  be  discharging  its 
cargo  at  a  port  not  authorized  for  foreign  trade,  the  corresponding 
lawsuit  was  brought  against  it,  and  the  final  sentence  thereof  declared 
that  the  ship  and  cargo,  together  with  its  tackle  and  appurtenances, 
had  incurred  the  penalty  of  confiscation,  all  having  been  complied  with 
in  conformity  with  Venezuelan  law.  According  to  Turnbull  himself, 
his  affairs  with  said  syndicate  were  rescinded  owing  to  the  referred-to 
calamity.  If  such  calamity  occurred  through  Turnbull's  fault,  he 
ought  to  take  upon  himself  Ihe  injurious  consequences  thereof;  if  the 
same  occurred  through  the  syndicate's  fault,  it  had  no  right  to  rescind 
the  contract,  and  Turnbull  could  demand  of  it  payment  for  damages 
and  losses.  In  consequence  thereof,  the  claim  under  analysis  is  deprived 
of  all  legal  grounds. 

There  is  another  general  feature  common  to  all  of  Mr.  Turnbull's 
claims,  and  that  is  the  want  of  evidence  in  regard  to  the  damages  he 
pretends  to  have  suffered,  and  which  he  reckons  at  really  fabulous 
amounts.  With  regard  to  the  detention  of  three  of  his  ships  during 
one  month,  effected  by  a  Government  official,  he  does  not  even  mention 
his  name,  and  affirms^  that  as  soon  as  the  Government  heard  of  this 
they  replaced  the  said  employee  and  put  the  ships  at  liberty,  which 
means  that  the  Government  tendered  their  protection  to  Mr.  Turnbull's 
interests.  And  as  regards  the  stealing  and  destruction,  effected  in 
1898,  of  the  tools  and  machinery  placed  at  the  mines  by  the  claimant, 
he  himself  declares  that  such  injurious  acts  were  committed  ''•ly  certain 
hidlvkluaU  v^hov^ere  revoltnu]  against  the  Go'veriiments,''^  which  shows 
that  such  acts  were  an  infringement  of  common  law,  and  that  Turn- 
])ull  should  have  applied  to  the  courts  of  justice  to  denounce  or  report 
the  perpetrators  thereof  and  demand  of  them  lavff ul  civil  atonement. 


REPORT    OF    ROBERT    C.   MORRIS 


THE    OKINOCO    COMPANY,  LIMITED. 


^RT    C.   MORRIS.  497 


This  conipari}^  claims  to  be  paid  $125,000  for  damaoes  alleged  to  have 
been  caused  through  its  having  bought  the  Imataca  mine,  at  a  judicial 
sale  before  the  court  of  hacienda  at  Ciudad  Bolivar,  and  through  the 
court  of  common  pleas  of  the  federal  district  having  declared  in  a 
sentence  issued  on  June  7,  lt><>0,  that  the  mine  belonged  to  Turnbull. 

When  analyzing  the  claims  of  said  Turnbull,  we  minuteh^  stated 
everything  relative  to  the  conhscation  suit  brought  against  "The 
Orinoco  Iron  Syndicate,  Limited,"  before  the  national  court  of 
hacienda  at  Ciudad  Bolivar,  and  we  fully  showed  the  lawfulness  of 
said  tribunal's  proceedings,  for  which  reason  we  shall  briefly  demon- 
strate the  entire  want  of  grounds  for  this  claim. 

This  want  of  grounds  for  the  claim  and  its  wrongfulness  are  evi- 
denced in  the  memorial  itself,  which,  on  the  other  hand,  shows  besides 
the  negligence  and  unskillfulness  wherewith  the  compan}^  and  its  rep- 
resentatives carried  on  the  whole  affair.  The  fact  is  that  in  said 
memorial  it  is  admitted  that  Mr.  Benoni  Lockwood,  jr.,  took  no  care 
to  ascertain,  before  becoming  a  purchaser,  what  rights  were  about  to 
be  sold,  nor  whether  such  rights  actually  belonged  to  the  Orinoco  Iron 
Sj'ndicate,  Limited,  against  whom  said  action  was  brought,  and  said 
gentleman  thought,  without  reading  the  respective  titles,  that  "said 
syndicate  was  assignee  of  all  of  the  rights  which  had  been  claimed  by 
said  Turnbull  to  said  premises;  and  being  assured  and  advised  by  said 
Berrio,  and  supposing  and  believing  that  said  sentence  was  a  lien  upon 
and  that  the  yjurchaser  of  said  premises,  at  said  sale  would  therefore 
acquire  all  the  rights  of  said  Turnbull  or  said  syndicate  to  the  posses- 
sion, development,  or  exploitation  of  said  mine,  and  the  title  of  'The 
Orinoca  Company,  Limited,'  thereto  be  effectually  and  finally  quieted 
as  against  the  same,  etc.,''  he  became  a  purchaser  thereof.  All  of  which 
evidentlv  proves  that  Lockwood  incurred  in  a*  series  of  deplorable 
mistakes,  and  "  The  Orinoco  Company,  Limited,"  holds  the  incon- 
ceivable absurdity  that  Venezuela  must  indemnify  it  for  the  injurious 
consequences  thereof. 

Mr.  Baxter,  the  direct  representative  of  "The  Orinoco  Compan}^ 
Limited,"  did  not  share  in  Mr.  Lockwood's  mistakes,  as  having  pow- 
erful reasons  to  doubt  that  the  Orinoco  Iron  Syndicate,  Limited,  was 
the  owner  of  the  mine,  and  in  doubt  also  as  to  whether  said  sale  were 
legal,  he  denied  to  deliver  to  Lockwood  the  120,000  bolivars,  which 
was  the  price  of  the  sale,  and  did  not  effect  said  payment  until  much 
later,  having  done  so  in  virtue  of  an  agreement  which  the  claimant 
sa3's  he  made  with  (len.  ('elis  Plaza  and  General  Berrio,  etc.  We 
repeat  that,  in  the  J  V  paragraph  of  the  memorial,  destined  to  expound 
and  support  this  claim,  its  insubsistenc^'  is  shown. 

The  high  ffidcral  coui-t  in  its  last  sentence  pronounced  the  unlawful- 
ness of  the  recourse  to  appeal  against  said  sale,  which  Turnbull  had 
pretended,  and  then  said  Turnbull  brought  an  action  against  Binioni 
Lockwood,  jr.,  and  "The  Orinoco  Company,  Limited,"  in  which  case 
a  definite  sentimce  was  passed  on  June  7,  1900,  its  dispositive  part 
being  as  follows,  to  wit: 

For  the  above  reasons  the  tribunal  afhiiinistering  justice  in  th(^  name  of  the  Kepnh- 
lic  declares  jiroundless  the  part  of  the  action  l)ronght  for  injury  and  dama^'es  by 
Georg^e  Turnbull  against  Benoni  Lockwood,  jr.,  American  citizen,  resident  in  New 
York,  an<l  the  Orinoco  Company,  Limited,  an  American  cori)oration  organized  in 


498  KKl'OK'l'    OK    KOHEKT    V.    MORRIS. 

conformity  with  the  hiws  of  the  State  of  Wisconsin,  as  is  shown  by  the  power  pro- 
duced, and  of  effect  tlie  other  part  in  which  the  said  Turnbull  asks  that  it  be  declared 
that  the  Orinoco  Iron  Company  lias  no  right  of  action  against  him  and  has  no  rights 
to  enforce  on  his  mine  Imataca.     No  special  order  is  made  as  to  costs. 

No  claim  arisiiio-  from  said  sentence  is  just,  except  to  prove  that  the 
same  is  notoriously  unjust;  furtiiermore,  the  Orinoco  Compan}',  Lim- 
ited, was  satisfied  with  said  decision,  since  it  did  not  attempt  the 
recourse  to  appeal  against  it,  which  is  granted  under  article  185  of  the 
Code  of  Civil  Procedure  and  which  provides  as  follows,  to  wit: 

On  all  definite  sentences  issued  in  first  instance  appeal  is  given,  except  when 
special  disposition  is  made  to  the  contrary. 

And  lastly,  the  real  purchaser  is  Mr.  Benoni  Lockwood,  jr.,  and  not 
the  Orinoco  Company,  Limited;  whereas,  if  by  said  sale  the  company 
sustained  damages  whatever,  it  ought  to  claim  compensation  of  the 
former,  and  not  of  the  Government  of  Venezuela. 

It  is  extremely  surprising  that  the"  sale  having  been  for  120,000  boli- 
vars, the  company  should  inconsiderately  raise  this  claim  to  125,0(M> 
dollars. 

It  has  most  clearly  been  shown  that  the  claim  analyzed  entirely 
lacks  grounds  and  therefore  must  be  disallowed. 

The  second  claim  of  "The  Orinoco  Company,  Limited,"  is  supposed 
to  arise  from  the  executive  resolution  issued  on  October  11,  1900, 
whereby  the  nullity  and  insubsistency  of  the  Fitzgerald  contract  of 
September  22,  1883,  was  ratified. 

The  Orinoco  Company,  Limited,  sets  forth  this  claim  as  assignee 
and  successor  of  the  "  Manoa  Company,  Limited,"  in  regard  to  the 
Fitzgerald  contract.  From  a  judicial  point  of  view  the  position  of 
both  companies  is  identical,  and  consequently  the  reasons  which  J 
exposed  on  analyzing  said  contract  suffice  for  rejecting,  asl  absohitely 
do  reject,  this  claim. 

I  therein  proved  that  the  resolution  of  September  9,  1886,  is  quite 
legal:  First,  because  the  "  Manoa  Compan}^,  Limited,"  confessed 
authentically  the  facts  which  are  the  grounds  thereof;  secondlv, 
because  the  company  itself  acknowledged  the  forfeiture  of  the  con- 
tract, and  lastly,  because  it  made  of  the  Government  a  judge  as  to  the 
subsistency  of  said  contract,  which,  having  been  annulled,  could  not 
revive  through  a  resolution,  but  was  essentially  necessary  that  it  should 
be  issued  anew,  fulhlling  all  the  requisites  and  formalities  wherewith 
it  was  originally  issued. 

REMARKS  IN  REFERENCE  TO  ""  THE  MANOA  COMPANY,  LIMITED."  AND 
TO  '■''THE  ORINOCO  COMPANY,  LIMITED." 

The  Venezuelan  commissioner  can  not  accept  the  alternative  and 
doubtful  form  in  which  the  aforementioned  companies  set  forth  some 
of  their  claims. 

"  The  Manoa  Company,  Limited,"  states  that  if  by  reason  of  the 
force  and  effect  of  said  resolution  of  September  9,  1886,  the  Fitzgerald 
concession  was  annulled,  the  company  estimates  the  damages  sustained 
at  a  certain  amount,  but  that  if  said  resolution  did  not  attain  legal 
efficacy,  then  the  compensation  demanded  amounts  to  a  different 
sum.  And  in  the  same  wa}'^  it  sets  forth  its  claims  for  the  Imataca 
and  Pedernales  mines. 


REPORT  OF  ROBERT  C,  MORRIS.  499 

"The  Orinoco  Companj-,  Limited,"  idheres  to  the  same  alternative 
form  in  setting  forth  its  claims  regarding  the  contract  and  aforesaid 
mines. 

Such  a  form  is  inadmissible  according  to  the  spirit  and  meaning  of 
the  protocol;  in  the  first  place,  because  every  claimant  must  set  forth 
his  claims  in  categorical  and  not  in  doubtful  terms,  as  the  Commission 
entirely  lacks  jurisdiction  to  decide  as  to  the  validity  or  nullity  of  a 
contmct  and  of  titles  of  ownership,  and  because  it  has  been  organized 
to  entertain  claims  of  United  States  citizens  for  obtaining  indemnifica- 
tion for  damages  and  losses  caused  by  acts  of  the  Government,  or  of 
Government  officials;  wherefore,  whenever  this  Commission  examines 
the  lawfulness  or  unlawfulness  of  a  resolution  of  the  Government  from 
which  a  claim  derives,  it  is  with  the  sole  view  of  awarding  an  indemnifi- 
cation in  case  of  said  resolution  being  unlawful,  and  of  denying  it  if  it  is 
lawful;  but  this  Commission  entirely  lacks  jurisdiction  for  declaring  a 
resolution  inefficacious  and  making  its  effects  void. 

The  Government  of  Venezuela,  in  organizing  the  Mixed  Commis- 
sions, appointed  judges,  and  not  authorities  capable  of  annulling  its 
acts. 

For  the  same  powerful  reasons,  the  undersigned  does  not  admit  the 
arguments  of  the  honorable  commissioner  on  the  part  of  the  United 
States,  Mr.  Bainbridge,  especially  those  affirming  the  existence  of  the 
Fitzgerald  contract  and  those  denying  validity  to  the  titles  of  owner- 
ship of  the  Imataea  and  Pedernales  mines  issued  by  the  Government 
of  Venezuela. 

In  virtue  of  the  reasons  stated,  the  opinion  of  the  Venezuelan  com- 
missioner is  that  the  claims  marked  Nos.  45,  40,  and  47  set  forth  by 
George  Turnbull.  ''  the  Manoa  Company,  Limited,''  and  "  The  Orinoco 
Compan3\  Limited,"  respectively,  must  be  absolutely  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  | 

of  George  Turnbull,  claimant,  I  ^^  ^^ 

V.  I        '       ' 

The  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  the  Manoa  Compan}',  Limited,  claimant, 

V. 

The  Republic  of  Venezuela. 


-  No.  46. 


Th^  United  States  of  America  on  behalf] 
of  The  Orinoco  Company,  Limited,  claimant,     \  ^^   ^«. 

The  Republic  of  Venezuela. 

OPINION,   decisions,   AND  AWARD  BY  THE  UMPIRE. 

The  claim  of  George  Turnbull  is  disallowed. 
The  claim  of  the  Manoa  Company.  Limited,  is  disallowed. 
The  umpire  awards  to  the  Orinoco  Company,  Limited,  the  sum  of 
126,620  United  States  gold. 
April  12,  1904. 


500  REPORT  OF  ROBERT  C.  MORRIS. 

The  United  States  :iiid  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  Unitkd  States  of  America  on  behalf  i 

of  George  Turnbull,  claimant,  K,t      ik  . 

r. 
The  Rei'ublio  of  Venezuela. 

The  United  States  of  Ameuica  on  behalf  I 

of  the  Manoa  Company',  Limited,  claimant,  (  ^^      .^ 

The  Republic  of  Venezuela.  | 

The  United  States  of  America  ox  behalf  | 

of  the  Orinoco  Compan3",  Limited,  claimant,  [  ^      ,  ^ 

The  Republic  of  Venezuela. 

The  Umpire. 

A  difference  of  opinion  arising  about  these  three  claims  between  the 
Commissioners  of  the  United  States  of  North  America  and  the  United 
States  of  Venezuela  they  have  duly  referred  to  the  umpire,  and  as 
they  all  have  the  same  origin,  and  follow  the  same  oi-der  of  facts  the 
umpire  thought  it  well  to  consider  them  jointly,  and  having  fully 
taken  into  consideration  the  protocol  and  also  the  documents,  evidence, 
and  arguments,  and  likewise  all  the  other  communications  made  by 
the  parties,  and  having  impartialh^  and  carefully  examined  the  same, 
has  arrived  at  the  decision  embodied  in  the  present  award. 

Whereas  in  the  month  of  September,  1883,  the  Government  of 
Venezuela  entered  into  a  contract  with  Cyrenius  C.  Fitzgerald  for  the 
exploitation  of  the  natural  products  of  a  certain  extent  of  territory, 
which  contract  reads  as  follows: 

The  minister  of  fomento  of  the  United  States  of  Venezuela,  duly  authorized  by 
the  President  of  the  Republic,  of  the  one  part,  and  Cyrenius  C.  Fitzgerald,  resi- 
dent of  the  Federal  Territory  Yuruary,  of  the  other  part,  have  concluded  the  follow- 
ing contract: 

Article  I. 

The  Government  of  the  Republic  concedes  to  Fitzgerald,  his  associates,  assigns, 
and  successors,  for  the  term  of  ninety-nine  years,  reckoning  from  the  date  of  this  (ton- 
tract,  the  exclusive  right  to  develop  the  resources  of  those  territories,  being  national 
property,  which  are  hereinafter  described. 

(1)  The  island  of  Pedernales,  situated  to  the  south  of  the  Gulf  of  Paria,  and 
formed  by  the  Gulf  and  the  Pedernales  and  Cucuina  streams. 

(2)  The  territory  from  the  mouth  of  the  Araguao,  the  shore  of  the  Atlantic 
Ocean,  the  waters  above  the  Greater  Araguao,  to  where  it  is  joined  by  the  Araguito 
stream,  from  this  point,  following  the  Araguito  to  the  Orinoco,  and  thence  the 
waters  of  the  upper  Orinoco,  surrounding  the  island  of  Tortola,  which  will  form  part 
of  the  territory  conceded,  to  the  junction  of  the  Jose  stream  with  the  Piacoa; 
from  this  point  following  the  waters  of  the  Jose  stream  to  its  source;  thence  in  a 
straight  line  to  the  summit  of  the  Imataca  range;  from  this  summit  following  the 
sinuosities  and  more  elevated  summits  of  the  ridge  of  Imataca  to  the  limit  of  British 
Guayana,  from  this  limit  and  along  it  toward  the  north  to  the  shore  of  the  Atlantic 
Ocean,  to  tlie  mouth  of  the  Araguao,  including  the  island  of  this  name,  and  the 
others  intermediate  or  situated  in  the  delta  of  the  Orinoco,  and  in  contiguity  with 
the  shore  of  the  said  ocean.  Moreover,  and  for  an  equal  term,  the  exclusive  right 
of  establishing  a  colony  for  the  purpose  of  developing  the  resources  already  known 
to  exist  and  those  not  yet  developed  of  the  same  region,  including  asphalt  and  coal; 


for  the  purpose  of  establishing  and  cultivating  on  as  high  a  scale  as  possible  agricul- 
ture, breeding  of  cattle,  and  all  other  industries  and  manufactures  which  may  be 
considered  suitable,  setting  up  for  the  purpose /aachinery  for  working  the  raw  rnate- 
rial,  exploiting  and  developing  to  the  utmost  tne  resources  of  the  colony. 

Article  II. 

The  Government  of  the  Eepublic  grant  to  the  contractor,  his  associates,  assigns, 
and  successors,  for  the  term  expressed  in  the  preceding  article,  the  right  of  intro- 
duction of  houses  of  iron  or  wood,  with  all  their  accessories,  and  of  tools  and  of 
other  utensils,  chemical  ingredients  and  productions  which  the  necessities  of  the 
colony  may  require;  the  use  of  machinery,  the  cultivation  of  industries,  and  the 
organization  and  development  of  those  undertakings  which  may  be  formed,  either 
by  individuals  or  by  companies,  which  are  necessary  to  or  depending  directly  on  the 
contractor  or  colonization  company;  the  exportation  of  all  the  products,  natural  and 
industrial,  of  the  colony;  free  navigation,  exempt  from  all  national  or  local  taxes,  of 
rivers,  streams,  lakes,  and  lagoons  comprised  in  the  concession,  or  which  are  natu- 
rally connected  with  it.  Moreover  the  right  of  navigating  the  Orinoco,  its  tributaries 
and  streams,  in  sailing  vessels  or  steamships,  for  the  transportation  of  seeds  to  the 
colony  for  the  purpose  of  agriculture,  and  cattle  and  other  animals  for  the  purpose 
of  food  and  of  development  of  breeding;  and,  lastly,  free  traffic  of  the  Orinoco,  its 
streams  and  tributaries,  for  the  vessels  of  the  colony  entering  it  and  proceeding  from 
abroad,  and  for  those  vessels  which,  either  in  ballast  or  laden,  may  cruise  from  one 
point  of  the  colony  to  the  other. 

Article  III. 

The  Government  of  the  Republic  will  establish  two  ports  of  entry,  at  such  points 
of  the  colony  as  may  be  judged  suitable,  in  conformity  with  the  treasury  code. 

The  vessels  which  touch  at  these  ports,  carrying  merchandise  for  importation,  and 
which,  according  to  this  contract  and  the  laws  of  the  Republic,  is  exempt  from 
duties,  can  convey  such  merchandise  to  those  points  of  the  colony  to  which  it  is 
destined  and  load  and  unload  according  to  the  formalities  of  the  law. 

Article  IV. 

A  title  in  conformity  with  the  law  shall  be  granted  to  the  contractor  for  every 
mine  which  may  be  discovered  in  the  colony. 

Article  Y. 

Cyrenius  C.  Fitzgerald,  his  associates,  assigns,  or  successors  are  bound: 

(1)  To  commence  the  work  of  colonization  within  six  months,  counting  from  the 
date  when  this  contract  is  approved  by  the  Federal  council  in  conformity  with  the 
law. 

(2)  To  respect  all  private  projjerties  comprehended  within  the  boundaries  of  the 
concession. 

(3)  To  place  no  obstacle  of  any  nature  on  the  navigation  of  the  rivers,  streams, 
lakes,  and  lagoons,  which  shall  be  free  to  all. 

(4)  To  pay  50,000  bolivars  in  coin  for  every  40,000  kilograms  of  serrapia  and 
caucho  which  may  be  gathered  or  exported  from  the  colony. 

(5)  To  establish  a  system  of  immigration  which  shall  be  increased  in  proportion 
to  the  growth  of  the  industries. 

(6)  To  promote  the  bringing  within  the  law  and  civilization  of  the  savage  tribes 
which  may  wander  within  the  territories  conceded. 

(7)  To  open  out  and  establish  such  ways  of  comnmnication  as  may  be  necessary. 

(8)  To  arrange  that  the  company  of  colonization  shall  formulate  its  statutes  and 
establish  its  management  in  conformity  with  the  laws  of  Venezuela,  and  submit  the 
same  to  the  approbation  of  the  Federal  Executive,  which  shall  promulgate  them. 

Article  VI. 

The  other  industrial  productions  on  which  the  law  may  impose  transit  duties  shall 
pay  those  in  the  form  duly  jjrescribed. 


502  ■REPORT    OB'    ROBERT    C.    MORRIS. 

Akticlk  VII. 

The  natural  and  industriiil  productions  of  the  colony,  dit^tinct  from  those  expresse<l 
in  Artiele  V,  and  which  arc  burdened  at  the  present  time  with  other  contracts,  shall 
pay  those  duties  which  the  most  favored  of  those  contracts  may  state. 

Akticlk  VIII. 

The  Government  of  the  Republic  will  organize  the  political,  administrative,  and 
judicial  system  of  the  colony,  also  such  armed  body  of  police  as  the  contractor  or 
company  "shall  judge  to  be  indispensable  for  the  maintenance  of  the  public  order. 
The  expense  of  the  body  of  police  to  be  borne  by  the  contractor. 

Article  IX. 

The  Government  of  the  Republic,  for  the  term  of  twenty  years,  counting  from  the 
date  of  this  contract,  exempts  the  citizens  of  the  colony  from  nulitary  service  and 
from  ])ayment  of  imposts  or  taxes,  local  or  national,  on  those  industries  which  they 
may  engage  in. 

Article  X. 

The  Government  of  the  Republic,  if  in  its  judgment  it  shall  be  necessary,  shall 
grant  to  the  contractor,  his  associates,  assigns,  or  successors,  a  further  extension  of 
six  months  for  commencing  the  works  of  colonization. 

Article  XI. 

Aii)"^  questions  or  controversies  which  may  arise  out  of  this  contract  shall  be 
decided  in  conformity  with  the  laws  of  the  Republic,  and  by  the  competent  tribunals 
of  the  Republic. 

Executed  in  duplicate,  of  one  tenor  and  to  the  same  effect,  in  Caracas,  22d  Sep- 
temi)er,  1883. 

Seiior  Heriberto  Gordon  signs  this  as  attorney  of  Senor  Cyrenius  C.  Fitzgerald, 
according  to  the  power  of  attorney,  a  certified  copy  of  which  is  annexed  to  this 
document. 

M.  CarabaSo, 
[Seal  of  the  ministry  MinlMer  of  Fomento. 

of  fomento.l  tt  /-i 

Heriberto  Gordon. 

And  whereas  the  term  fixed  in  Article  V,  1,  of  this  contract  on  the 
petition  of  Fitzgerald  was  extended  to  six  months  more,  to  count  from 
the  22d  of  March,  1884; 

And  whereas  during  this  term,  v.  g.",  on  the  l-ith  of  June,  1884, 
this  concession  was  transferred  from  Fitzgerald  to,  The  Manoa  Com- 
pany, Limited; 

And  whereas  on  the  9th  of  September,  1886,  a  resolution  of  the  Fed- 
eral Executive  declared  this  contract  insubsistente  6  caduco  ; 

And  whereas  on  the  28th  of  April,  1887,  the  Congress  approved^'., 
contract  passed  in  Nice  on  the  1st  of  January,  1886,  between  Guzman 
Blanco,  env^oy  extraordinary  and  plenipotentiarv  minister  of  the  United 
States  (3f  Venezuela  to  various  courts  of  Europe,  and  George  Turnbidl. 
which  contract  reads  verbally  as  the  above-mentioned  contract  with 
Fitzgerald,  except  that  an  Article  XII  was  added,  reading  as  follows: 

This  contract  shall  enter  into  vigor  in  case  of  the  becoming  void  through  failure  of 
compliance  within  the  term  fixed  for  this  purpose  of  the  contract  celebrated  with 
3Ir.  Cyrenius  C.  Fitzgerald,  the  22d  of  September,  1883,  for  the  exploitation  of  the 
same  territory. 

And  whereas  on  these  contracts,  respectivel}',  are  based  the  claims 
of  The  Manoa  Company,  Limited,  all  the  claims  but  one  of  The  Ori- 
noco Company,  Limited,  and  the  claims  of  George  Turnbull,  it  has  to 
be  considered  which  rights  to  claim  for  damages  against  the  Venezue- 
lan Government  these  contracts  give  to  the  claimants — The  Manoa 
Company,    Limited,   The   Orinoco  Company,  Limited,   and   George 


EEPORT  OF  ROBERT  C.  MORRIS.  503 

Turnbiill — and  which  obligations  on  the  side  of  the  Venezuelan  (Gov- 
ernment to  o-rant  to  the  said  claimants  what  they  claim  for  can  be 
based  upon  these  contracts. 

First  as  to  the  Fitzgerald  contract,  purchased  by  The  Manoa  Corn- 
pan}',  Limited,  as  being  prior  in  date. 

Whereas  this  contract  in  due  form  was  lawfully  performed,  all 
its  stipulations,  of  course,  were  binding  upon  both  contracting  parties 
as  long  as  the  contract  legally  existed. 

NoAv.  svhereas  claimants'  claims  center  in  the  assertion  that  this  con- 
tract was  unlawfully  annulled  by  the  Venezuelan  Government,  and 
while  it  is  for  losses  suffered  in  consequence  of  this  unlawful  annulment 
that  damages  are  claimed,  it  has  to  be  examined  whether  the  contract 
was  unlawfullv  annulled,  and  if  so,  whether  this  unlawful  action  gives 
a  right  to  the  claimant  to  claim  for  damages  and  imposes  a  duty  on  the 
S^enezuelan  Government  to  grant  what  is  claimed. 

Now,  whereas  the  incriminated  act  of  the  Venezuelan  Government 
is  the  resolution  of  the  Federal  Executive  of  September  9.  1886,  this 
resolution  has  to  be  considered.     It  reads  as  follows: 

El  Senor  Heriberto  Gordon,  con  poder  del  Sefior  C.  C.  Fitzgerald,  celebro  el  22  de 
setienibre  de  1883  con  el  Gobierno  Nacional  un  contrato  para  explotar  las  riquezas  que 
seencuentran  en  terrenos  de  propiedad  nacionalenel  Gran  Delta,  debiendo  empezar 
los  trabajos  dentro  de  seis  meses,  contados  desde  la  fecha  expresada,  y  aunque  tras- 
currido  ente  termino  sin  dar  principio  a  ellos,  el  Gobierno  lo  concedio  una  prorroga 
para  veriticarlos;  como  el  indicado  contratista  no  ha  complido  las  obligaciones  que 
contrajo,  segun  se  expresa  en  el  informe  del  Director  de  Eiqueza  Territorial  especi- 
ficados  en  el  mismo,  refiriendose  al  articulo  5  del  contrato  en  que  8e  determinen;  el 
Consejero  Encargado  de  la  Presidencia  de  la  Eepublica,  con  el  voto  afirmativo  del 
Oonsejo  Federal,  declara  insubsistente  6  caduco  el  expresado  contrato. 

Cumuniquese  y  publiquese. 

For  el  Ejecutivo  Federal. 

Firmado.  G.  Paz  Sandoval. 

Reading  this  resolution  it  is  clear  that  the  contract  was  declared 
insubsistente  6  caduco,  for  reason  that  the  contracting  party  (claim- 
ant) had  not  done  what  in  Article  V  of  the  contract  he  pledged  himself 
to  do. 

Now,  whereas  this  Article  V  reads  as  stated  above,  and  Avhereas  it  is 
quite  clear  by  evidence,  not  only  that  the  claimant  on  the  said  9th  of 
Septeml)er,  1886,  had  not  complied  with  one  of  his  obligations;  whereas 
even  at  the  end  of  the  prolongation  of  six  months  that  was  granted  as 
a  term  to  begin  the  works  of  colonization  this  colonization  can  not 
be  said  to  have  begun,  as  the  sending  of  an  engineer  and  some  employees 
on  the  ^-tth  of  August  can  not  be  said  to  be  "commencing  the  works 
of  colonization"'  (even  if  the  then  governor  of  the  Federal  Territory 
of  the  Delta  on  the  petition  of  clainuuit's  administrator  stating  the 
arrival  of  these  en)ployecs  added  the  words  "  so  complying  with  the 
stipulation  of  Article  V,"  because  this  authority  could  only  state  the 
facts,  and  was  not  the  legal  authority  to  judge  whether  l)y  these  facts 
claimant  complied  with  the  stipulation  of  tlie  contract);  whereas  fur- 
ther on  the  original  conti'actor  himself,  director  of  the  claimant  corn- 
pan  v,  stated  even  as  late  as  September,  188.5,  that  claimant  had  not 
cominencedthe  works  of  colonization;  that  claimant  had  not  established 
a  system  of  colonization;  that  claimant  had  not  i)i-omoted  the  bring- 
ing within  law  and  civilization  the  savage  tribes  which  might 
wander  within  tiie  territory  conceded;  that  claimant  had  not  opened 
up   and  established   any  ways  of   coumumication,  and  that  claimant 


luul    not    even    urninij;iHl  tluit     the    coiiip;in-v   of  colon ization    sliould 
formulate  its  statutes; 

Aiul  whereas  the  elaiuiant  company  itself,  as  late  as  April  10,  1886, 
stated  in  a  petition  to  the  Government  of  Veiuv.uela  tiiat  it  had  not 
ri\ili/.ed  the  works  it  was  pledged  to  realize  ])v  the  contract;  l)ut  that 
1)V  the  same  evidence  is  shown  that  the  claimant  company,  throuj>h  it-; 
pecuniary  position,  <Y>?//(^?  vAr>?'  have  realized  what  by  contract  it  Avas 
pledoed  to  do,  as  according-  to  the  company's  president  himself,  the 
company  from  October,  1885,  till  NoA^ember,  18S6,  never  had  in  cash 
more  than  $0,  and  in  that  time  did  not  spend  a  farthing-  for  the 
execution  of  the  contract,  while  during  all  that  time  the  drafts  drawn 
by  the  companj^'s  Venezuelan  attorney,  Mr.  Heriberto  Gordon,  were 
protested  as  they  could  not  be  paid,  with  the  exception  of  two  for 
^00  each,  which  were  paid  b}'  Mr.  Safi'ord  and  not  by  the  company's 
cash; 

And  whereas  evidence  shows  that  in  rlannary,  1885,  stockholders 
resolved  for  the  execution  of  the  contract  to  issue  $5,000,000  in  bonds, 
which  in  November  of  that  year  were  secured  by  mortgage  on  the 
concession,  and  for  which  even  until  November,  1886,  not  a  penny  was 
received  by  the  company,  that  even  the  printing  of  the  bonds  could 
not  be  paid,  and  that  Fitzgerald,  wdio  had  sold  the  concession  for 
■11,750  shares  of  $100  nominal  each,  in  July  1886,  was  willing  to  sell 
them  for  a  few  thousand  dollars.  The  facts  alleged  as  a  reason  for 
declaring  the  contracts  insubsistente  6  caduco  are  proved,  and  it  is 
clearly  shown  by  evidence  that  on  the  9tli  of  September,  1886,  the 
claimant  company  had  in  no  wise  fulfilled  any  of  the  duties  imposed 
b}"  the  contract. 

Now,  whereas  it  is  settled  that  there  were  sufficient  reasons  to  declare 
the  contract  insubsistente  6  caduco  it  has  to  be  seen  if  by  the 
declaration  of  the  Federal  P^xecutive  the  contract  really  was  annulled. 
And  then  it  has  to  be  remembered  that  the  question  could  be  and 
really  has  been  put  whether  No.  1  of  Article  V  of  the  contract  was  a 
condition,  the  nonfulfillment  of  which  would  retroact,  so  that  it  were 
as  if  the  contract  had  never  existed,  in  which  case  the  resolution 
would  be  a  simple  act  whereby  it  was  stated  that  the  contract  did  not 
exist,  that  it  was  insubsistente,  and  the  contract  would  really  not 
exist,  or  whether  this  No.  1,  as  all  the  other  numbers  of  Article  V, 
was  an  obligation,  the  nonfulfillment  of  which  would  be  a  sufficient 
reason  for  making-  the  contract  caduco — that  is  to  say,  to  annul  the 
contract  that  was  till  then  reall}^  existing,  which  annulment,  accord- 
ing to  the  general  principles  of  equity,  accepted  by  the  laws  of  almost 
all  the  civilized  nations,  could  not  be  executed  by  one  of  the  parties, 
but  had  to  be  pronounced  by  the  proper  judge. 

Now%  whereas  Article  V  expressly  says  that  the  concessionar}^,  his 
associates,  assigns,  and  successors  se  obligan  (pledge  themselves)  to 
begin  within  a  certain  time,  and  w^hereas  they  could  not  begin  without 
a  concession,  because  they  would  have  had  no  right  to  work  according' 
to  the  concession  on  the  Government  grounds  granted  by  the  conces- 
sion, if  they  had  not  this  concession;  and  whereas  thev  could  not  have 
this  concession  not  existing  the  contract  l)y  which  it-  was  granted,  it 
seems  evident  that  according  to  the  will  of  contracting  parties  (the 
supreme  law  in  this  matter)  this  No.  1  of  Article  V,  as  in  all  other 
numbers  of  this  article,  was  an  obligation  and  not  a  condition. 


Wherefore  the  mentioned  Executive  decree  can  not  be  regarded  a* 
a  mere  declaration  that  the  contract  was  insubsistente,  but  has  to  be 
regarded  as  an  act  by  which  the  Government  declared  it  caduco, 
that  is  to  sa3%  "annulled  it,"  which  act  could  never  have  the  effect  of 
reall}'  annulling  the  contract,  because  in  cases  of  bilateral  contracts, 
the  nonfulfillment  of  the  pledged  obligations  by  one  part}"  does  not 
annul  the  contract  ipso  facto,  but  forms  a  reason  for  annulment,  which 
annulment  must  be  asked  to  the  tribunals,  and  the  proper  trii)unal 
alone  has  the  power  to  annul  such  a  contract;  this  rule  of  the  law  of 
almost  all  civilized  nations  being  in  al)solute  concordance  with  the  law 
of  equity,  that  nobody  can  be  judge  in  his  own  case. 

This  annulment  is  superfluous,  of  course,  when  both  parties  agree 
that  the  contract  is  annulled  because  the  obligations  were  not  fulfilled, 
and  the  Executive  decree  in  question  can  not  be  regarded  as  any- 
thing more  but  a  conmiunieation  on  the  part  of  the  Government  that 
it  thought  the  contract  was  ended,  to  which  the  other  party  could 
agree  or  not  agree  as  it  thought  fit,  and  if  it  did  not  think  this  fit  the 
contract  would  subsist  until  its  annulment  was  pronounced  by  the 
proper  tribunal. 

In  consequence  of  all  the  before  said  we  stand  here  before  the  case 
of  a  contract  between  two  parties  of  which  one,  disregarding  all  the 
pledged  obligations,  gave  more  than  sufficient  reason  for  the  annul- 
ment of  the  contract,  while  the  other  acted  as  if  the  contract  were 
annulled  by  its  own  declaration  of  that  annulment,  in  that  way  disre- 
garding (as  if  not  existing  any  longer)  an  always  still  lawful  existing* 
contract. 

Now  it  might  be  asked,  if  absolute  equity,  without  regard  to  tech- 
nical questions,  would  allow  to  one  of  the  parties  the  right  to  a  claim 
based  on  a  contract,  the  existence  of  which  is,  it  is  true,  unjusth^ 
denied  b}"  the  opposing  party,  but  all  the  stipulations  of  which  con- 
tract were  trespassed  by  that  same  demanding  part3^ 

But  there  i^  more  to  consider. 

It  is  not  to  be  forgotten  that  the  contract  in  question  has  an  article 
11  reading  as  follows: 

The  questions  or  controversies  tfiat  arise  for  reason  of  this  contract  shali  be  decided 
in  conformity  with  the  laws  of  the  Republic  and  by  its  competent  tribunals. 

Which  article  forms  part  of  the  contract  just  as  well  as  any  of  the 
other  articles,  and  which  article  has  to  be  regarded  just  as  well  as 
any  of  the  other  articles  as  the  declarations  of  the  will  of  contracting 
parties,  which  expressed  will  must  he  respected  as  the  supreme  law 
between  parties,  according  to  the  inunutable  law  of  justice  and  equity. 
"Pecta  servanda,"  without  which  law  a  contract  would  have  no  more 
worth  than  a  treat}',  and  civil  law  would — as  international  law — have 
no  other  sanctiora  than  the  cunning  of  the  most  astute  or  the  brutal 
force  of  the  physically  strongest. 

It  has  to  be  examined,  therefore,  what  parties  intended  by  inti-oduc- 
ing  this  article  in  the  contract;?  To  what  did  they  ])ledg('  themselves 
by  submitting  thereto^  And  in  how  far  docs  it  interfere  with  the 
claims  herein  examined^ 

Now  wher(!as  it  is  clear,  that  in  the  ordinary  course  of  affairs,  when 
nothing  especially  were  stipulated  thereupon,  all(|uestions  and  contro- 
versies arising  for  reason  of  the  contract  would  have  to  be  decided  by 
the  competent  tribunals  and  in  conformity  with  the  laws,  there  must  be 


50(i  REPORT  OF  ROBERT  C.  MORRIS. 

looked  for  some  special  reason  to  make  this  stipulation  and  to  induce 
l)arties  to  pledge  (henisehes  expressl}'  to  a  course  of  action  they 
would  without  this  special  pled^-e  be  oblig-ed  to  follow  just  as  well. 
There  nuist  Ixi  a  nieaniiii;-  in  the  article  which  makes  the  judges  by 
law.  juilges  1)V  contract  as  well,  and  tiiis  meaning  can  be  no  other,  but 
that  parties  agreed  that  the  questions  and  controversies  that  might 
arise  by  reason  of  the  contract  should  be  decided  only  by  the  compe- 
tent tribunals  oi'  the  Republic,  and  therefore  not  b}^  the  judges  of  the 
country  of  the  other  party,  if  he  be  a  foreigner,  nor  by  arbitration, 
either  national  or  international;  while  it  is  not  to  be  ovei'looked  that 
it  is  not  said  in  the  contract  that  the  claims  oi  one  party  against  the 
other  should  be  judged  (that  is  to  say,  allowed  or  disallowed)  by  the 
mentioned  judge  only,  but  that  only  these  judges  should  decide  about 
the  questions  and  conlrovei'sles  that  might  arise,  which  decision,  of 
course,  implies  the  decision  about  the  question  whether  the  interpreta- 
tion of  the  contract  by  one  of  the  parties,  or  that  party's  appreciation 
•of  facts  in  relation  to  the  contract  were  right  and  therefore  could  be 
a  good  reason  for  a  claim  for  damages,  so  that  properly  speaking, 
there  could  be  no  basis  for  a  claim  for  damages,  but  the  decision  of 
these  express!}"  indicated  judges  about  this  question  or  controvers3^ 

Therefore,  if  one  of  the  parties  claims  for  damages  sustained  for 
reason  of  breach  of  contract  on  the  part  of  the  other  part}^,  these 
damages  can,  according  to  the  contract  itself,  only  be  declared  due  in 
case  the  expressl}'  designed  judges  had  decided  that  the  fact,  which 
according;  to  the  demanding  party  constituted  such  a  breach  of  con- 
tract, really  constituted  such  a  breach,  and  therefore  formed  a  good 
basis  whereon  to  build  a  claim  for  damages.  Parties  have  deliberately 
contracted  themselves  out  of  any  interpretation  of  the  contract  and 
out  of  an}"  judgment  about  the  ground  for  damages  for  reason  of  the 
contract,  except  by  the  judges  designed  b}^  the  contract,  and  where 
there  is  no  decision  of  these  judges  that  the  alleged  reasons  for  a  claim 
for  damages  really  exist  as  such,  parties  according  to  the  contract  itself 
have  no  right  to  these  damages,  and  a  claim  for  damages  which  parties 
have  no  right  to  claim  can  not  be  accepted.  Parties  expressly 
expressed  will  and  their  formal  pledge  that  for  reason  of  the  contract 
no  damages  should  be  regarded  as  due  but  those  declared  due  by  the 
indicated  judges,  must  be  respected  b}^  this  Commission,  when  judging 
about  a  claim  based  on  such  a  contract,  just  as  well  as  all  the  other 
stipulations  of  that  contract,  and  therefore  it  can  not  declare  due  dam- 
ages that  parties  in  that  contract  solemnly  themselves  declared  not  to 
be  due. 

And  whereas  all  the  claims  of  the  Manoa  Company,  Limited,  as  well 
as  all  the  claims  but  one  of  the  Orinoco  Company,  Limited,  are  claims 
for  damages  based  on  points  that  are  questions  and  controversies  arisen 
for  reason  of  the  Fitzgerald  contract; 

And  whereas  not  one  decision  of  the  competent  tribunals  of  Ven- 
ezuela about  these  questions  and  controversies  that  would  make  these 
damages  due  was  laid  before  the  Commission,  while,  according  to  the 
contract  itself,  onl}-  such  damages  should  bo  due  between  parties  which 
were  asked  on  such  grounds  as  would  have  been  declared  good  grounds 
l)y  these  tribunals,  the  Commission  can  not  declare  due  the  damages 
claimed  which  the  parties  by  contract  declared  not  to  be  due,  and 
therefore  it  can  not  allow  these  claims. 


REPORT  OF  ROBERT  C.  MORRIS.  507 

Now,  as  to  the  claims  of  George  Turnbull; 

Whereas,  as  was  shown  above,  on  the  1st  of  Januar}',  1886,  on  the 
11th  of  September,  1886,  and  on  the  27th  of  April,  1887,  the  Fitzgerald 
contract  was  as  Aet  legally  existing,  the  Republic  of  Venezuela  could 
not  dispose  on  behalf  of  Turnbull  of  what  it  already  had  disposed  on 
behalf  of  another,  and  therefore  Turnbull  obtained  no  right  vyhatever 
of  property  in  the  concession  under  and  by  virtue  of  the  contract 
contirmed  by  Congress  on  the  27th  of  April,  1887; 

And  whereas  the  mines  of  Pedernales  and  Imataca  formed  part  of 
the  still  existing  Fitzgerald  concession,  TumbvilFs  alleged  titles  to 
these  mines  are  equally  void,  and  as  all  his  claims  are  based  on  this 
void  contract  and  these  void  titles,  they  can  not  be  allowed. 

Lastl}^  as  to  the  claim  of  "The  Orinoco  Company,  Limited,"  that 
is  not  based  on  the  Fitzgerald  concession. 

Whereas  evidence  shows  that  on  the  lOth  of  November,  1898,  Carlos 
Hammer,  with  power  of  attorney  from  Benoni  Lockwood,  jr.,  in  the 
name  of  and  representing-  "The  Orinoco  Company,  Limited,"  paid  to 
the  Venezuelan  Government  the  sura  of  120,000  bolivars  for  rights 
purchased  on  a  judicial  sale  on  November  18,  1898,  which  rights,  as 
evidence  shows,  the  Republic  could  not  dispose  of,  and  out  of  the  pos- 
.session  of  which  rights  claimant  was  expelled  by  the  proper  authorities 
of  that  Republic.  This  undulj^  received  sum  of  120,000  bolivars  has 
to  be  restored  to  him  who  unduly  paid  it. 

Wherefore  the  Republic  of  the  United  States  of  Venezuela  shall 
have  to  pay  to  "The  Orinoco  Company,  Limited,"  the  sum  of  120,000 
bolivars,  or  $23,076.9.3,  with  interest  at  3  per  cent  per  annum  from  the 
19th  of  November,  1898,  to  the  31st  of  December,  1903. 

The  United  States  and  Venezuelan  Claims  Commission.     Sitting  at 
Caracas,  Venezuela. 


l^No.  45. 


The  United  States  of  America  on  behalf 
of  George  Turnbull,  claimant, 

v. 
The  Republic  of  Venezuela. 

DECISION. 

The  above-entitled  claim  is  hereby  disallowed. 

Harry  Barge,  Umjyire. 
Attest: 

Eduardo  Calcano  Sanaoria, 

Secretary  on  the  2>tti't  of  Venezuela. 
Rudolf  Dolge. 

Secretary  on.  the  iKirt  of  the  United  States  of  America. 

Delivered  April  12,  1904. 


508  REPORT    OF    KOBERT    C.   MORRIPi. 

TIk^  ruitcd  States  and  \'onezuelan  Claims  Commission.     Sitting  at 
Caracas.  "SVnozuola. 

The  Ignited  States  of  America  on  behalf  | 
of  the  Manoa  Company,  Limited,  claimant,      I  -^^^^  ^^ 

V.  i        "       ' 

The  Republic  of  Venezuela.  I 

DECISION. 

The  above-entitled  claim  is  hereby  disallowed. 

Harry  Barge,  Umjpire.. 
Attest: 

Eduardo  Calcano  Sanaoria. 

Secretari/  on  the  part  of  Yeriezuela. 
Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  April  12,  1904:. 

The  United  States  and  Venezuelan  Claims  Commission.     Sitting  at 
Caracas,  Venezuela. 

AWARD. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  the 
Orinoco  Company,  Limited,  claimant,  against  the  Republic  of  Vene- 
zuela, No.  47,  the  sum  of  twentv-six  thousand  six  hundred  and  twenty 
dollars  (126,620.00),  in  United  States  gold,  is  hereby  awarded  in  favor 
of  said  claimants,  which  sum  shall  be  paid  by  the  Govei'nment  of  Ven- 
ezuela to  the  Government  of  the  United  States  of  America  in  accord-  • 
ance  with  the  provisions  of  the  convention  under  which  this  award  is- 

made. 

Harry  Barge,   JJnqnre. 

Attest: 

Eduardo  Calcano  Sanaoria. 

Secretary  on  the  part  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  April  12,  1904. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United   States  of  America  on  behalf  ~ 
of  William  H.  Mundy,  claimant, 

V. 

The  Republic  of  Venezuela. 


No.  48. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.     A  brief  was  filed  by  the 


REPORT  OF  ROBERT  C.  MORRIS.  509 

agent  of  Venezuela  in  answer,  and  a  brief  was  filed  b}"  the  agent  of 
the  United  States  in  replication. 

[Translation.] 
AYlLLIA^I     H.    MUNDY  ) 

V.  VNp.  48. 

Venezuela.  j 

ANSWER. 

Honorable  mewhers  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  hy  AVilliam  H.  Mundy,  an  American  citizen,  and 
respectfully  informs  this  tril)unal: 

This  claim  arises,  according  to  the  affirmation  of  the  claimant,  from 
certain  professional  services  rendered  to  Venezuela  by  him  before  the 
Committee  of  Foreign  Relations  of  the  United  States  Congress  with 
the  object  of  obtaining  the  annulment  of  the  judgments  pronounced 
by  the  commissions  of  1867-68,  which  had  been  attacked  by  the 
former  because  of  fraud.  The  claimant  does  not  recite  what  sort  of 
services  his  were,  nor  hy  means  of  whom  Venezuela  agreed  to  pay  him 
for  them;  but  he  does  allege  the  existence  of  an  agreement  in  which 
this  latter  recognized  itself  as  a  debtor  to  him  and  to  John  C.  Nobles 
in  the  sum  of  $50,000. 

In  the  memorial  of  the  claimant  there  will  be  observed  a  certain 
.vagueness  of  expression  which  clearly  demonstrates  the  injustice  of 
the  claim.  In  the  first  place  a  commission  is  referred  to  which  sat 
•'sometime  before  the  vear  1876.''  It  is  not  conceivable  how  an  indi- 
vidual who,  according  to  his  own  statement,  took  such  an  active  part 
in  the  work  of  securing  the  invalidation  of  the  awards  of  that  same 
commission  to  which,  no  doubt,  he  refers;  does  not  know  the  exact 
date  when  it  was  in  session,  and  indicates  it  approximately  within  the 
period  of  ten  years. 

Besides  this  most  singular  case  is  presented,  that  for  the  space  of 
twenty  years  he  has  kept  absolute  silence  without  presenting  his  claim 
or  asserting  his  rights  before  any  one  to  whom  they  might  appeal,  and 
it  is  onlv  now  and  before  this  tribunal  that  he  appears  attempting  to 
justif\'  his  inaction  by  an  inadmissible  pretext  and  assumes  that  he  will 
T)e  believed  upon  his  simple  affirmation,  since  the  document  which 
.supports  his  claim  against  Venezuela  has  been  lost  by  him.  Accord- 
ing to  the  best  criterion  the  contrary  conviction  would  arise  from  that 
which  he  is  attempting  to  establish! 

Generally  this  sort  of  documents  is  not  apt  to  be  lost,  but  when  this 
does  happen  all  the  necessary  steps  to  secure  the  rights  which  are 
established  l)y  them  are  taken. 

Venezuela  has  no  notice  that  her  confidential  agent  in  Washington 
contracted  in  her  name  agreements  of  any  sort,  and  in  her  department 
of  foreign  art'aiis  thei(>  is  nothing  about  the  matter. 

The  claim  ought  to  })e  disallowed  l)ecause  it  is  not  founded  upon 
any  proof  which  makes  the  existence  of  the  contract  out  of  which  it 
arises  even  plausi})le. 

Caracas,  August  5,  ),1>03. 

F.  Akkoyo  Pare.to. 


510  REPORT  OF  ROBERT  0.  MORRIS. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17   1908,  between  the  United  Statci^  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  William  II.  Mundy,  claimant,  1  -^      .q 

r.  (^     ' 

The  Repuklic  of  Venezuela.  I 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  has  presented  in  this  case  the  claim  of  William  H. 
Mund}'  amounting  to  the  sum  of  $10,000  for  professional  services 
rendered  to  the  Government  of  Venezuela  in  the  preparation  of  the 
case  before  the  United  States  Government  for  setting  aside  the  find- 
ings of  the  mixed  connnission  which  sat  it  Caracas  in  1867  and  1868. 
The  amount  of  the  claim  is  based  upon  a  written  agreement  entered 
into  b}'  the  claimant  with  General  File,  the  confidential  agent  of  Vene- 
zuela. The  claimant  has  not  presented  the  original  document  upon 
which  his  claim  is  founded,  owing  to  the  fact  that  he  has  been  pros- 
trated by  a  serious  illness  which  has  rendered  him  incapable  of  trans- 
acting any  business  during  the  last  fifteen  years,  and  that  in  that  time 
his  papers  have  been  scattered  and  lost.  The  claimant  states  in  his 
memorial  that  after  the  rehearing  commission  of  1890  had  been 
appointed,  he  applied  to  the  minister  of  Venezuela  to  the  United 
States  for  the  payment  of  the  amount  due  him,  but  that  he  obtained 
no  satisfaction. 

There  has  been  no  evidence  other  than  the  sworn  memorial  presented 
to  the  Commission  in  support  of  this  claim,  but  the  claimant  has  writ- 
ten to  the  agent  of  the  United  States  stating  that  if  necessary  he  will 
personally  appear  before  the  Commission  to  testify  in  this  matter, 
although  it  will  cause  him  heavy  expense  and  nuich  personal  incon- 
venience. If  the  Connnission  does  not  feel  that  the  claim  is  sufficiently' 
supported  by  the  memorial,  it  is  respectfully  suggested  that  it  direct 
either  that  the  claimant  shall  appear  in  person  to  further  support  his 
claim  or  that  a  connnission  shall  issue  to  take  his  testimony. 

Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America   on  behalf  1 

of  William  H.  Mundy,  claimant,  i  -vt      to 

'  'jNo.  48.  . 

v.  ( 

The  Republic  of  Venezuela.  J 

DECISION. 

By  the  Commission: 

The  Commission  disallows  the  claim. 


REPORT  OF  ROBERT  C.  MORRIS.  511 

The  United  States  and  Venezuelan  Claims  Connnission,  .sitting  at 
Caracas,  Venezuela.  ^ 

DECISION. 

In  re  the  claim  of  the  United  States  of  America  on  behalf  of  Wil- 
liam H.  Mundy  against  the  Hepublic  of  Venezuela,  No.  48.  The  evi- 
dence presented  in  support  of  said  claim  being  insufficient  to  establish 
any  liability  on  the  part  of  the  Government  of  Venezuela  to  the  claim- 
ant, the  said  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 
Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Commissioner  07i  the  part  of  Yenezuela. 
Attest  to  decision: 

Hakry  Barge,  Presidents 

Attest : 

J.  Padron-Uztariz, 

Secretary  on  the  jMrt  of  Yenezuela. 

Rudolf  Dolge, 

Secretary  On  thej>art  of  the  United  States  of  America. 

Delivered  October  1»).  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 
of  the  American  Electria  and  Manufacturing  | 
Company,  claimant,  [-No.  -19. 

The  Republic  of  Venezuela.  I 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  ITnited  States  in  an  oral  argument.  A  brief  Avas  tiled  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of  the. 
United  States  in  replication. 

On  October  31  the  Commissioner  on  the  part  of  Venezuela  rendered 
an  opinion  disallowing  the  claim.  The  Commissioner  on  the  part  of  the 
United  States  verl)ally  stated  his  inability  to  agree  with  the  opinion? 
of  the  Conunissioner  on  the  part  of  Venezuela,  and  the  claim  was  sub- 
mitted  to  the  umpire  for  decision. 

['I"ransliitii)n.| 

The  American  Elp:ctric  and  MANUFACTURiN(i 

C'Ompany 

•r. 

The  Republic  of  Venezuela. 

ANSWEIv. 

Tlonoi'oble  memhers  <f  the  American-  Venezuelan  Mixed  Com,mission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by ''The  American  Electric  ami  Manufacturing- 
Company,''  and  respectfully  shows  to  this  tribunal: 


r  iNo.    1:9. 


512  KKPOKT  OF  KOBERT  C.  MORRIS. 


Tho  compan}'  (■lainiaiit  is  cessionary  of  a  concession  which  the 
^'ational  (Tovornmciit  orantcd  in  the  year  1887  to  Aquilino  Orta,  for 
the  instuHation  of  telephonic  lines  in  the  Republic,  approved  by  Con- 
gress,  and  afterwards  ti-ansferred  by  Orta  to  Candalario  Padron;  by 
this  latter  to  the  American  Telephone  Company;  by  it  to  the  Ameri- 
can Telephone  Company  (Consolidated);  and  last!}'  })y  said  company 
to  the  claimant.  The  origin  of  the  claim  consists,  according  to  the 
alhrniation  of  the  claimant,  in  that  the  Government  violated  the  stip- 
ulations of  the  contract  made  with  Orta,  b}'  granting  to  another  com- 
pany franchises  analogous  to  those  which  constituted  his  privilege. 
It  asserts  also  that  it  acquired  the  said'  concession  with  the  positive 
assurance  and  in  the  belief  that  the  Venezuelan  Government  had 
^•ranted  it  exclusive  rights. 

The  grounds  upon  which  the  claimant  relies  are  not  conclusive  for 
the  following  reasons: 

(1)  Because  at  the  date  of  the  Orta  concc^ssion  there  existed  in  full 
force  a  contract  made  with  Mr.  J.  A.  Derrom,  as  representative  of  the 
Intercontinental  Telephone  Company  of  New  Jersey,  articles  1  and  3 
of  which  are  as  follows: 

Art.  1.  The  Intercontinental  Telephone  Compan}'  obligates  itself  to  establish  tele- 
phonic lines  within  the  cities  and  between  the  principal  cities  and  towns  of  the 
Ilepiit)lic  as  they  may  be  deemed  necessary. 

Art.  3.  The  (jrovernnient  obligates  itself  not  to  grant  during  the  period  of  fifteen 
jears,  reckoned  from  this  date,  a  like  concession  to  any  other  person  or  company. 

(2)  Because,  under  date  of  the  29th  of  August,  1888,  Mr.  T.  W. 
Tyrer,  superintendent  of  the  American  Telephone  Compan}^  (Consol- 
idated), the  immediate  predecessor  of  the  claimant,  went  before  the 
ministry  of  fomento,  soliciting  the  revocation  of  the  concession  which 
the  Intercontinental  Compan}^  was  enjoying,  which  proves  that  at  that 
date  a  controversy  had  arisen  between  the  two  companies. 

II. 

There  can  be  no  doubt  that  the  rights  ceded  to  Aquilino  Orta  by  the 
Government  were  thus  ceded  without  prejudice  to  those  which  Mr. 
Derrom  had  acquired  prior  to  that  time  by  the  contract  to  which  refer- 
ence has  been  made.  It  is  not  possible  for  the  claimant  to  plead  igno- 
rance at  the  time  when  it  succeeded  to  the  concession  of  Orta  in  said 
contract,  which  was  a  law  of  the  Republic.  The  assertion  tli^it  it 
promised  to  annul  it  for  want  of  fulfillment  is  unfounded  in  the  first 
place,  and,  besides,  such  promise,  in  case  it  were  made,  which  is  denied, 
could  afl^'ord  no  security,  since  the  annulment  of  said  contract  had  to  be 
declared  hy  an  adverse  judgment  between  the  contracting  parties,  as  is 
.stipulated  in  the  instrument  constituting  it.  Thus  it  is,  then,  that  when 
the  predecessors  in  interest  of  the  claimant  began  to  fulfill  its  contract 
they  did  so  knowing  of  the  existence  of  the  other  concession  prior  and 
similar  to  their  own,  Avhich  was  in  existence. 

The  competition  between  the  two  companies  resulted  in  the  liquida- 
tion of  the  claimant,  which  neither  at  that  time  nor  afterwards  made 
any  claim  against  the  (jovernment  before  the  tribunals  of  justice,  nor 
diplomatically.  It  is  undoubted  that  if  it  considered  that  it  had  any 
rights  it  ought  to  have  enforced  them,  in  accordance  with  the  Vene- 
zuelan laws  to  which  it  had  submitted  itself  expressly  b\'  the  tenth 
clause  of  the  contract. 


REPOKT  OF  KOBERT  C.  MORRIS.  513 

It  is  to  be  noted  that  in  the  contract  made  with  Orta  the  Government 
did  not  grant  him  the  exclusive  right  to  install  telephone  lines  in  the 
interior  of  the  Republic:  that  since  then  it  has  not  granted  anv  new 
concession  nor  permitted  extensions  of  the  contracts  already  in  force. 

The  same  clause  8  of  the  Orta  contract,  which  literally  reads,  "the 
Government  shall  not  grant  to  any  other  person  or  company  like  con- 
cessions, nor  shall  it  permit  extensions  of  the  contracts  which  may  be 
in  opposition  to  the  present  *  *  *,"  shows  clearly  that  it  consid- 
ered some  analogous  contract  in  force  that  could  have  been  extended: 
this  could  not  be  other  than  the  Derrom  contract,  relating  also  to  tel- 
ephonic installations,  but  on  a  smaller  scale. 

The  American  Electric  and  Manufacturing  Companj^,  as  has  been 
shown,  not  having  taken  measures  against  the  Government  before  the 
national  tribunals,  nor  diplomatically,  for  any  claim  on  account  of 
the  nonf  ultillment  of  the  contract  of  which  it  was  the  cessionary  up  to 
the  time  when  it  sold  its  properties,  of  which  sale  it  notified  the  com- 
petent authorities  without  reserving  an}^  I'ight,  it  can  not  be  admitted 
to  claim  before  this  honorable  Commission  for  imaginary  damages 
which,  at  any  rate,  it  ought  to  have  attempted  to  recover  b}^  suit  before 
the  judges  chosen  b}-  itself  with  its  cocontractor. 

For  all  of  the  foregoing  reasons  the  claim  ought  to  be  disallowed. 

Caracas,  August  16,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf 
of  the  American  Electric  and  Manufacturing 
Company,  claimant,  rNo.  49. 

V. 

The  Republic  of  Venezuela. 

replication  on  behalf  of  the  united  states, 
statement  of  fact. 

This  claim  is  made  on  behalf  of  the  American  Electric  and  Manu- 
facturing Compan}',  a  corporation  organized  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of  Virginia,  and  a  citizen  of  the 
United  States  of  America.  On  April  20,  1887,  the  Government  of 
Venezuela,  acting  through  its  duly  authorized  representative,  entered 
into  a  contract  with  A(|uilino  Orta  for  the  construction,  maintenance, 
and  operation  of  teh^ijiiono  lines  in  the  Repu))lic  of  Venezuela.  Sub- 
sequently Orta  assigned  this  contract  to  one  Candelario  Padron,  who, 
in  turn,  transf(M-red  the  same  to  the  American  Telephone  Company, 
which  granted  all  its  rights  under  said  concession  to  the  American 
Telephone  Company,  Consolidated,  which,  in  turn,  ceded  its  rights  to 
the  present  claimant. 

Prior  to  the  granting  of  the  contract  to  Aquilino  Orta  the  Govern- 
ment of  Venezuela  had  made  a  similar  contract,  which  had  been  ceded 
to  the  Intercontinental  Telephone  Company.  The  Intercontinental 
Telephone  Company  had,  at  the  time  of  the  concession  of  the  Orta  con- 
S.  Doc.  317,  58-2 33 


51i  REPORT  OF  KOBKRT  0.  MORRIS. 

tnut  to  the  prodeoessor  in  intorost  of  the  claimant  here,  a  telephone 
plant  in  operation  in  the  cit\'  of  Caracas. 

At  the  time  that  the  American  Telephone  Company  took  over  the 
Orta  concession  the  authorities  of  the  Venezuelan  Government  gave 
them  the  assurance  that  as  soon  as  their  plant  was  in  operation  the 
concession  of  Avhich  the  Intercontinental  Telephone  Compan}"^  was  the 
owner  would  l)e  revoked;  that  the  I'eason  therefor  was  that  its  service 
was  poor;  that  it  had  refused  to  fultill  stipulations  made  with  the  Gov- 
ernment as  to  the  reduction  of  ratios,  and  that,  moreover,  it  had  not 
fulfilled  its  contract,  as  it  had  not  completed  the  construction  of  tele- 
phone lines  throughout  the  Republic  of  Venezuela  within  three  years 
from  the  date  of  the  contract,  as  provided  for  in  article  6.  Upon  this 
assurance,  the  American  Telephone  Company,  as  is  shown  by  the 
memorial  and  the  testimony  introduced  here  in  evidence,  spent  large 
sums  of  money  in  the  establishment  of  its  plant  at  Caracas  and  in  other 
cities  of  Venezuela. 

The  predecessor  in  interest  of  the  present  claimant  fulfilled  all  the 
stipulations  of  the  contract  with  the  Government  of  Venezuela,  con- 
structing its  lines  within  the  specified  time  and  paying  to  the  Govern- 
ment of  Venezuela  6  per  cent  of  the  gross  receipts  of  said  company. 
The  payment  of  this  percentage  is  shown  by  documents  existing  in  the 
department  of  mails  and  telegraphs  (ministry  of  fomento)  of  Venezuela, 
entitled  ''Department  of  Telephones,  General  Memorandum  concern- 
ing the  American  Telephone  Company,  1887-1898." 

As  soon  as  the  plant  was  properly  in  operation  the  duly  authorized 
representative  of  the  American  Telephone  Company  appealed  to  the 
Government  for  the  revocation  of  the  contract  under  which  the  Inter- 
continental Telephone  Company  was  operating.  The  Government  of 
Venezuela  failed  to  comply  with  its  promise,  and  the  two  companies 
continued  to  operate  their  separate  plants.  Subsequent  thereto  the 
Intercontinental  Telephone  Company  began  the  construction  of  new 
lines  and  the  importation  of  materials  and  machinery  for  the  construc- 
tion thereof.  This  also  was  made  the  subject  of  written  protest  by 
T.  W.  Tyrer,  the  duly  authorized  representative  of  the  American 
Telephone  Company. 

At  the  time  of  the  granting  6i  the  Orta  contract  one  J.  J.  Derrom, 
who  was  the  representative  of  the  Intercontinental  Telephone  Com- 
pan}'.  made  a  protest  to  the  Government  of  Venezuela  in  which  he 
stated  that  said  contract  was  an  infringement  of  the  rights  of  the 
Intercontinental  Company  of  New  Jersey.  This  protest  is  on  file  in 
the  ministry  of  fomento  of  the  Venezuelan  Government  under  the  title 
of  "Record  No.  17,  file  No.  6,  year  1887,  Department  of  Mails  and 
Telephones."  The  answer  to  this  protest  on  the  part  of  Mr.  Derrom 
appears  in  the  evidence  submitted  herewith. 

The  failure  on  the  part  of  the  Venezuelan  Government  to  fulfill  its 
promise  with  respect  to  the  cancellation  of  the  concession  of  the  Inter- 
continental Telephone  Company  and  its  refusal  to  prevent  said  com- 
pan}"  from  extending  its  lines  then  existing  and  building  new  lines,  as 
well  as  the  fact  that  it  permitted  materials  and  machinery  for  said  lines 
to  enter  the  Republic  free  of  duty,  caused  a  competition  in  the  tele- 
phone business  in  Venezuela  which  ultimately  forced  the  retirement 
of  the  American  Electric  and  Manufacturing  Company  and  the  sale  of 
all  its  property  at  a  great  sacrifice. 


REPORT  OF  ROBERT  C.  MORRIS.  515 


From  the  evidence  in  this  case  it  is  apparent  that  the  Government 
of  Venezuela  was  dissatisfied  with  the  telephone  service  rendered  by 
the  Intercontinental  Telephone  Company  and  that  it  had  decided  to 
annul  the  concession  of  that  company  and  grant  a  new  concession  for 
the  establishment  of  an  efficient  service.  With  this  object  in  view  it 
granted  the  new  concession,  which,  by  the  transfers  above  stated,  sub- 
sequently became  the  propert}^  of  the  claimant.  The  letters  herewith 
submitted  in  evidence,  addressed  to  the  Government  of  Venezuela  by 
the  American  Telephone  Compan}-,  Consolidated,  clearly  show  that  the 
Government  of  Venezuela  intended  to  take  definite  action  to  prevent 
further  operations  by  the  Intercontinental  Telephone  Compan}^  as  soon 
as  the  new  service  was  estaljlished.  These  letters  are  in  the  form  of 
protests  to  the  Venezuelan  Government  for  not  having  carried  out  the 
promises  upon  which  the  company  relied,  and  specifically  refer  to  a 
verbal  understanding  had  with  the  Government  by  the  representative 
of  the  American  Telephone  Company,  Consolidated.  Upon  this  point 
the  files  of  the  proper  department  of  the  Government  of  Venezuela 
have  been  consulted  to  ascertain  what  correspondence  was  had  upon 
this  matter,  and  there  does  not  appear  to  have  been  any  reply  to  the 
protests  of  the  new  company.  From  this  it  is  fair  to  presume  that  if 
the  understanding  as  stated  in  the  letters  had  not  existed,  the  Govern- 
ment would  have  re.sented  the  protests  and  would  have  addressed  itself 
in  repl}'  to  the  compan}",  stating  its  position.  It  is  reasonable  to 
assume,  therefore,  that  the  understanding  between  the  Government 
and  the  new  telephone  company  was  exactl}^  as  stated. 

II. 

Notwithstanding  the  verbal  agreement  on  the  part  of  the  Govern- 
ment it  continued  to  allow  the  Intercontinental  Telephone  Compan}'  to 
carry  on  its  business,  and  ])esides  permitted  it  to  introduce  free  of 
customs  duties  instruments  and  materials  for  the  construction  of  new 
telephone  lines,  thus  actually  fostering  the  old  enterprise  at  the  expense 
of  the  new  company.  This  fact  is  clearly  established  by  the  letters  of 
protest  of  the  American  Telephone  Company,  Consolidated,  above 
referred  to,  and  on  this  point  there  does  not  appear  to  have  been  any 
answer  b}-  the  Government  of  Venezuela. 

III. 

From  the  evidence  submitted  with  this  claim  it  is  apparent  that  the 
American  Teh'phone  Company,  Consolidated,  relying  upon  its  contract, 
which  gave  it  the  sole  right  to  establish  a  telephone  service  in  Vene- 
zuela, and  upon  the  good  faith  of  the  Venezuelan  Government,  inter- 
ested a  large  amount  of  capital,  which  was  put  into  the  enterprise; 
that  it  constructed  its  plants  and  operated  its  lines;  that  it  paid  the 
percentage  to  the  Government  agreed  upon;  that  its  earnings  were 
good;  that  it  was  living  up  to  the  spirit  and  letter  of  its  contract,  and 
that  it  was  in  a  fair  way  to  prove  a  permanent  succ^ess.  It  is  clear  that 
the  ultimate  sacrifice  was  due  to  the  nonfuKilhrKMit  of  the  promises 
made  to  it  and  to  the  favor  shown  to  the  Intercontinental  Telephone 
Company. 


51 G  KKPOKT    OF    liOBERT    C.    MORRIS. 

"\Vo  su}>mit,  therefore,  that  an  award   should  l>e  made  for  the  fidl 
uinount  of  tlie  h)ss  oceavsioned  to  it  l)y  the  conduct  of  the  Venezuehm 
GovenuniMit.  as  is  claimed  in  the  memorial. 
Kespectfully  submitted. 

Robert  C.  Morris, 
Af/eni  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Conmiission,  sitting  at 
Caracas,  Venezuela. 


Thk  United  States  of  America  on  behalf] 
of  '"The  American  Electric  and  Manufactur-  | 
ing'  Company," 

The  Republic  of  Venezuela. 


Claim  No.  49. 


Doctor  Grisanti,  Coniuilfialoner: 

"The  American  Electric  and  Manufacturing  Company"  deduces  a 
claim  against  the  Republic  of  Venezuela,  adducing  as  the  grounds  for 
it  the  facts  stated  in  its  memorial,  some  of  which — those  denoting  most 
importance — will  presentl}^  appear  in  this  statement. 

In  May,  1887,  the  Government  of  Venezuela  made  a  contract,  in 
virtue  of  which  they  granted  Aquilino  Orta  "the  right  to  establish 
telephonic  communication  within  the  towns  and  cities  of  the  Republic 
and  between  the  same;  also  in  the  country  districts  and  country  villages 
and  between  both;  and  further,  to  extend  the  same  communication 
outside  of  Venezuela  by  such  means  as  he  may  deem  most  suitable." 

In  July,  1883,  the  Government  of  Venezuela  had  signed  another 
contract,  which  had  the  same  object,  with  the  "Intercontinental  Tele- 
phone Company,"  of  New  Jersey,  represented  by  Mr.  J.  A.  Derrom. 

After  several  assignments  the  claimant  company  became  an  assignee 
of  the  contract  signed  with  Orta,  and  at  the  time  of  fulfilling  the  same 
by  establishing  some  telephonic  lines  entered  into  competition  with  the 
"Intercontinental  Telephone  (Company,"  of  New  Jersey,  in  which 
competition  the  claimant  company  was  defeated  and  ended  in  its  trans- 
ferring the  contract  to  its  competitor. 

This  simple  statement,  strictly  adhering  to  the  truth,  is  an  abridged 
record  of  the  case.  On  what  principle,  then,  of  justice  or  equity  can 
"The  American  Electric  and  Manufacturing  Company"  rely  for  its 
claim?  From  which  juridical  postulate  or  from  which  legal  precept 
does  liability  arise  for  Venezuela  to  indemnify  damages  caused  by  the 
defeat  in  that  struggle  of  enterprises  considered  the  political  economy 
as  the  most  efficacious  means  of  ameliorating  and  rendering  products 
cheaper  and  developing  industrial  progress?     , 

"The  American  Electric  and  Manufacturing  Company"  pretends  to 
found  its  claim  on  the  grounds  of  article  8  of  its  contract,  which  is 
worded  as  follows: 

The  Government  shall  not  grant  similar  concessions  to  any  other  person  or  com- 
l)any,  nor  shall  it  permit  additions  to  contracts  interfering  with  the  present  one  dur- 
ing a  period  of  nine  years,  which  shall  be  reckoned  from  the  date  on  which  it  is 
signe(l,  and  may  be  extended  for  three  3'ears  longer  at  the  option  of  the  Government. 

The  foregoing  article  was  not  infringed,  as  the  Government  of 
Venezuela  did  not  grant  any  concession  that  impaired  or  collided  with 
the  right  of  the  claimant  compan3^ 


REPORT  OF  ROBERT  C.  MORRIS.  5l7 

It  is  also  adduced  as  the  grounds  for  the  claim  that  the  Government 
authorities  of  Venezuela  assured  the  claimant  company  that  as  soon 
as  its  telephonic  plant  should  be  in  operation  the  concession  of  1883 
would  be  revoked. 

Of  this  assertion,  which  is  inverisimil,  not  the  least  proof  has  been 
produced;  and  in  case  such  promise  had  been  given,  not  being  legal, 
it  could  not  give  rise  to  an}^  right.  On  the  other  hand,  the  principal 
reason  assigned  for  said  revokement,  which  was  the  poor  service  of  the 
"Intercontinental  Telephone  Company,'"'  of  New  Jersey,  is  denied  by 
the  real  facts,  as  it  defeated  the  claimant  company  in  competition. 

It  is  the  opinion  of  the  Venezuelan  Commissioner  that,  on  the 
strength  of  the  reason  stated,  the  claim  specified,  which  "The  Ameri- 
can Electric  and  Manufacturing  Company"  deduced,  should  be 
disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  " 
of  The  American  Electric  and  Manufacturing 
Company,  claimant,  !>  Claim  No.  49. 

V. 

The  Republic  of  Venezuela. 

DECISION. 

Opinion  by  Doctor  Barge,  umpire. 
The  umpire  disallows  the  claim. 
November  18,  1903. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States   of  America  on   behalf  i 
of  The  American  Electric  and  Manufacturing 
Company,  claimant,  \  Claim  No.  49. 

V. 

The  Republic  of  Venezuela. 

The  Umpire: 

A  difierence  of  opinion  having  arisen  between  the  Commissioners  of 
the  United  States  of  America  and  the  United  States  of  Venezuela,  this 
case  was  dul}'  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol  and 
also  the  documents,  evidence,  and  arguments,  and  likewise  all  the 
communications  made  by  the  two  parties,  and  having  imi^utiall}'  and 
carefully  examined  the  same,  has  arrived  at  thi;  following  decision: 

Whereas  the.  claimant  in  this  claim  was  the  i)roprietor  of  a  contract 
made  between  the  (jovermnent  of  Venezuela  and  one  A([uilino  Orta 
about  the  establishment  of  telephonic  communication,  and  claims  for 
damages  suffered  by  him  through  the  fault  of  the  Venezuelan  Govern- 
ment in  his  enterprise  to  realize  the  object  of  this  contract;  and 

^^'hereas  article  10  of  this  contract  reads  as  follows:  "  I)oul)ts  and 
controversies  that  may  arise  in  consequence  of  thi«  contract  shall  be 


518  RErOKT  OF  KOBEKT  C.  MOKKIS. 

^<ettled  by  the  courts  of  the  liepublic  in  confonnity  with  its  laws,"  the 
ht)uoi-al)le  a^-ent  for  the  United  States  of  Venezuela  opposes  that 
het'ore  comino-  to  this  Coniniission  the  claimant  company  ought  to 
have  attempted  to  recover  the  pretended  damao-es  before  the  judges 
chosen  by  itself  with  its  contractor. 

AMiereas,  howevei',  it  is  clearly  shown  by  the  evidence  before  the 
Connnission  tiiat  at  the  moment  Aquilino  Orta  made  said  contract  with 
the  N'enezuelan  Cxovernment  that  Government  was  bound  by  a  prior 
contract  with  another  party,  Avhich  contract,  if  not  annulled,  would 
make  so  much  as  void  the  contract  with  said  Orta;  wherefore,  as 
is  shown  in  the  evidence,  the  claimant  com]iany  and  his  predecessors 
did  not  cease  to  ask  for  the  annulment  of  the  prior  contract,  basing 
their  demand  on  the  pretended  promise  of  the  Government  to  annul 
that  contract;  and  wherefore  the  honorable  agent  of  the  United  States 
of  America  in  his  replication  (which  replication  at  the  same  time  bears 
the  character  as  a  brief  on  behalf  of  the  claimant)  cites  "  the  failure 
on  the  part  of  the  Venezuelan  Government  to  fullill  its  promise  with 
respect  to  this  cancellation  of  the  (prior)  concession"  as  cause  of  claim- 
ant's losses  for  which  damages  are  claimed. 

Whereas,  therefore,  not  the  contract,  but  the  pretended  prom- 
ise, from  which  the  contract  had  to  deduce  its  value,  shows  itself 
as  cause  of  this  claim,  no  article  of  the  contract  seems  apt  to  inter- 
fere with  the  question  of  jurisdiction  about  a  claim  originated  in  the 
nonfullillment  of  a  promise  b}"  which  onl}'  that  contract  would  obtain 
its  full  force  and  proper  value. 

Wherefore  the  fact  that  the  claimant  company  did  not  first  go  to 
judges  chosen  by  itself  in  this  contract  does  not  disable  it  to  come  to 
this  Commission  for  decision  in  a  claim  originated  in  pretended  prom- 
ises whereon  the  force  of  the  contract  depended. 

And  now,  as  to  the  main  question: 

Whereas  article  1  of  the  contract  made  in  1887  with  Aquilino  Orta, 
afterwards  transferred  to  the  claimant,  reads  as  follows:  "The  Gov- 
ernment grants  to  Aquilino  Orta  the  right  to  establish  telephonic  com- 
munication vfithin  the  totims  and  the  cities  of  the  Republic  and  heMveen 
the  same;  also  in  the  country  districts  and  the  cotintry  villages  and 
h'tween  hoth^^  etc.,  whilst  article  1  of  a  contract  made  in  1883  between 
the  same  Government  and  one  »T.  A.  Derrom  (law  of  31  July,  1883) 
reads  as  follows:  ""The  International  Company  of  Telephone  pledges 
itself  to  establish  telephonic  lines  in  tJie  interior  of  tlie  cities  andhetwee?! 
the  princij)al  cities  and  covrm.if7iities  of  the  Republic  where  this  may 
be  deemed  necessary,"  being  followed  ))y  these  words  of  article  3: 
"The  Government  pledges  itself  during  the  time  of  fifteen  years, 
beginning  from  this  date,  not  to  give  equal  concession  to  any  other 
person  or  company."  It  is  clearl}'  shown  that  the  concession  given  to 
Aquilino  Orta  was  in  flagrant  opposition  w  ith  the  rights  granted  to  the 
Intercontinental  Company,  and  that  the  contract  with  Orta  could  never 
obtain  its  main  efl'ect  as  long  as  this  contract  with  Derrom  existed; 
wherefore  the  cancellation  or  this  annulment  of  this  prior  contract  was 
the  condition  sine  qua  non  for  the  contractors  of  the  later  contract  to 
attain  the  main  efi'ect  of  their  act;  and 

Whereas  the  evidence  laid  before  the  Commission  shows  that  claim- 
ant and  his  predecessors  were  well  aware  of  this  fact,  as  the.y  never 
ceased  to  appeal  to  the  Government  for  the  revocation  of  tlie  contract 
under  which  the  Intercontinental  Telephone  Company  was  operating, 


REPORT  OF  ROBERT  C.  MORRIS.  519 

whilst  it  ma}-  be  regarded  as  very  characteristic  for  the  wa}-  the  con- 
tract with  Orta  was  looked  upon'^b}-  its  possessors  that  the  contract  a 
few  months  after  its  orig-in  being  already-  transferred  into  the  hands  of 
the  fourth  possessor.  This  fourth  possessor  (the  American  Telephone 
Company,  consolidated,  from  which  the  claimant  afterwards  purchased 
it)  refused  to  pay  it  with  $100,000,  but  agreed,  as  the  evidence  says, 
'y>nhj  to  give  in  payment  thereof  11,250,000  in  shares,"  thus  valuing 
its  own  shares  at  the  very  outset  of  the  enterprise  at  less  than  8  per 
cent;  and 

Whereas,  further  on,  the  former  legal  attorney  of  the  American 
Telephone  Company,  who  transacted  the  purchase  of  the  contract  by 
that  company  (from  which  company  the  claimant  company  in  turn 
purchased  its  I'ights),  declared  under  oath,  as  the  evidence  shows, 
that  "it  was  with  the  explicit  understanding  that  the  Intercontinental 
Company  vxis  to  he  entirely  removed  that  the  American  Telephone 
Company  undertook  to  establish  the  telephone  business  in  that  country 
(Venezuela)."  By  all  these  facts  it  is  clearly  shown  that  to  the  knowl- 
edge of  the  claimant  company  and  its  predecessors  the  contract  with 
Orta  was  in  flagrant  opposition  with  the  prior  contract  made  with  Der- 
rom,  but  could  not  have  its  main  eflect  without  the  annulment  of  this 
prior  contract,  which  annulment  the  possessor  of  the  Orta  contract 
pretended  and  pretend  was  promised  to  them  by  the  Venezuelan  Gov- 
ernment, and  that  therefore  not  the  contract  itself,  but  the  nonfultill- 
ment  of  the  promise  that  had  to  give  the  contract  its  force,  or,  as  the 
honorable  agent  of  the  United  States  puts  it  in  his  answer,  "the  fail- 
ure on  the  part  of  the  Venezuelan  Government  to  f nihil  its  promise 
with  respect  to  the  cancellation  of  the  Intercontinental  Telephone 
Company,"  is  to  be  regarded  as  the  cause  of  this  claim. 

And  whereas  no  direct  proof  of  this  promise  is  to  be  found  in  the 
evidence,  but  whereas  the  fact  that  the  Government  decided  to  make 
the  Orta  contract,  in  flagrant  opposition  with  the  prior  Derrom  con- 
tract, and  the  fact  that  the  Government  not  having  contested  the  dif- 
ferent protests  of  the  claimant  company  and  its  predecessors  as  to  the 
nonfulflllment  of  this  promise  might  seem  to  point  to  the  probability 
of  such  promise  having  been  (at  least  orally)  given. 

Whereas,  on  the  other  side,  the  facts: 

First.  That  the  Government  never  interrupted  the  acts  of  the  Inter- 
continental Telephone  Company  when  this  company  contrived  to  carry 
out  the  prior  contract. 

Second.  That  no  proof  of  any  sign  of  difficulties  between  the  Gov- 
ernment and  the  Intercontinental  Telephone  Company  is  given  except 
th(>  complaint  of  the  company  not  i-educing  their  tariff's. 

Third.  That  the  Govei-nment,  on  the  contrary,  always  l)ehaved  in 
respect  to  the  Intercontinental  Telephone  Company  in"  a  way  which 
made  the  claimant  company  and  its  predecessors  speak  about  tlie  Inter- 
<'ontinental  as  about  '"the  favored  company,"  and  complain  of  the  Gov- 
<M-nment's  predilection  for  that  company-,  and  which  even  made  the 
honorable  agent  of  the  United  States  of  America  point  to  "the  favoi's 
shown  to  the  Intercontinental  Telephone  (Company  "  as  to  one  of  the 
reasons  for  the  ultimate  sacrirtce  of  the  undertaking  of  the  claimant 
company  and  its  ))redecessoi-s,  seem  to  s])('ak  for  the  improl)al)ility  of 
the  Venezu<'lan  (lovernmeiit  ever  intending  to  cancel  the  i)ri()r  con- 
tract in  favor  of  the  second,  and,  consequently,  for  the  improbability 
of  any  formal   promise  as  to  that  cancellation,  for  all  which  reasons 


520  REPORT    OF    ROBJ]RT    C.    MORRIS. 

the  fiiot  that  the  (Tovorninont  of  Venozuola  })r()ini.scd  to  the  claimant 
company  and  its  predecessors  the  cancellation  of  the  Derrom  contract 
can  not  in  eciuity  he  said  to  ])e  sntliciently  proved. 

Whereas,  further  on,  article  S  of  the  Derrom  contract  reads,  in  the 
same  ^vords  as  article  1(>  of  the  Orta  contract,  ''Doid)tsand  controver- 
sies that  may  arise  in  conseciuence  to  this  contract  shall  be  settled  by 
the  courts  of  the  llei)ublic  in  conformity  with  its  laws;"  and 

Whereas,  therefore,  even  if,  as  claimant  assures,  the  Government 
wanted  to  finish  up  with  the  Derrom  concession,  and  for  that  reason 
promised  its  cancellation,  this  promise  would  be  a  promise  to  do  an 
iUegal  act.  as  the  (Tovernment,  as  well  as  the  other  party,  was  bound 
to  this  article,  and  therefore  to  the  laws  of  the  country,  which  laws, 
in  complete  accord  with  general  principles  of  law,  would  not  allow 
the  Government  to  cancel  the  contract  on  its  own  authority,  but  would 
require  that  the  annulment  be  declared  l)y  an  adverse  judgment  between 
the  contracting  parties;  for  which  reason  such  a  promise,  even  when 
proved  to  have  been  given,  would  not  give  rise  to  an}^  rights  as  being- 
illegal,  and  with  relation  to  the  contract  (which  without  it  would  be 
void  of  its  main  value)  would  stand  as  a  condition  explicitly  given 
orally  and  implicitly  contained  in  the  contract,  which  condition, 
according  to  the  laws  of  the  country  as  well  as  according  to  the  gen- 
eral principles  of  law,  would  be  null  and  make  null  the  contract  that 
depends  on  it. 

Whereas,  therefore,  whatever  may  or  might  have  been  the  wrong 
of  the  Government  in  making  a  contract  in  flagrant  contradiction  with, 
a  prior  contract,  or  in  })romising  to  put  an  illegal  deed,  so  that  the  later 
contract  might  have  its  force,  absolute  equity  forbids  to  recognize  a 
right  to  a  claim  founded  either  on  the  breach  of  a  contract  that  could 
only  get  its  force  by  the  fulfillment  of  a  promise  to  do  an  unlawful 
deed  or  on  the  nonfulfillment  of  this  unlawful  promise  itself,  the 
claim  of  the  American  Electric  and  Manufacturing  Company  has  to  be 
disallowed. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United   States   of  America  on  behalf 
of  Lorenzo  Mercado,  claimant, 

The  Republic  of  Venezuela. 


-No.  50. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimant,  and  was  supported  at  the  time  of  presentation  b}"  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  filed  by  the 
agent  of  Venezuela  in  answer.  Before  the  time  for  replication  under 
the  fourth  rule  of  the  Commission  had  expired,  the  agent  of  the  United 
States  was  instructed  by  the  legation  of  the  United  States  at  Caracas 
to  withdraw  the  claim  in  accordance  with  the  wishes  of  the  claimant. 
The  claim  waa  accordingly  withdrawn. 


REPORT  OF  ROBERT  C.  MORRIS.  521 

[Translation 


Lorenzo  Merc  ado  | 

V.  VNo.  50. 

Venezuela.        ) 


ANSWER. 


Honorable  members  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  new  claim  presented  b}-  Lorenzo  Mercado, 
and  respectful!}-  informs  the  tribunal: 

In  answering-  the  present  claim  the  agent  of  Venezuela  ought  to 
reiterate  the  argument  made  in  the  answer  of  claim  No.  27,  attempting 
to  demonstrate  that  the  claimant  is  not  an  American  citizen,  and  in  the 
case  denied  that  the  Commission  might  recognize  him  as  su'^-h;  he 
could  not  invoke  the  protection  of  the  American^  Government  pn 
account  of  having  mixed  himself  in  the  interior  affairs  of  the  politics 
of  Venezuela,  and  violated,  therefore,  the  neutrality  which  foreigners 
ought  to  observe. 

Moreover,  certain  conditions  exist,  which  the  undersigned  will  now 
proceed  to  set  forth,  for  the  disallowance  of  the  present  claim. 

It  is  based  upon  the  following  considerations: 

(1)  In  facts  arising  out  of  the  contract  made  for  the  construction  of 
the  wharves  of  Puerto  Cabello. 

(2)  In  damages  suffered  by  the  firm  N.  Paquet  &  Co.,  organized  on 
the  1st  of  January,  1896. 

(3)  In  the  pretended  violation  of  a  contract  relative  to  the  con- 
struction of  waterworks  of  El  Valle  made  with  the  Government  of 
Venezuela  in  the  year  1897. 

As  may  be  seen  from  the  memorial  itself  of  the  claimant,  the  rights 
which  he  alleges  to  hold  against  the  Government  of  Venezuela  all  had 
origin  on  dates  prior  to  the  facts  upon  which  he  seeks  to  found  his 
status  as  an  American  citizen. 

On  the  other  hand,  the  claimant  has  not  furnished  the  proofs  that 
he  was  in  fact  a  member  of  the  firm  N.  Paquet  &  Co.,  nor  that  he 
owned  in  it  the  interest  which  he  chiims. 

Besides,  the  .said  lirm  wirs  not  registered  as  a  juridic  person  in  any 
American  State,  which  prcv^ents  him  from  presenting  himself  before 
this  honorable  Connnission. 

With  respect  to  the  claim  set  up  for  the  want  of  regularity  in  the 
payment  of  the  interest  upon  the  del^t  contracted  by  Venezuela  as  the 
price  for  the  sale  of  the  various  concessions  to  which  the  claimant 
alludes,  it  is  a  principle  of  international  law  that  such  a  circumstance 
can  not  give  rise  to  international  claims. 

For  the  reasons  set  forth  the  undersigned  considers  that  the  claim 
ought  to  ))('  disallowed. 

Caracas,  August  10,  1903. 

F.  Arroyo  Parejo. 


522  REPORT  OF  ROBERT  C,  MORRIS. 

Before  the  Mixed  Commission  or<;-anized  under  the  protocol  of  Febru- 

arj'  17,  1903,  })etween  the  United  States  of  America 

and  the  Republic  of  Venzuela. 

The  United  States  of   America  on   behalf 

of  Lorenzo  Mereado,  claimant,  [  ^^^^  2^  ^^^  ^^^ 

r. 
The  Republic  of  Venezuela. 

Your  Honors:  I  am  just  in  receipt  of  a  letter  from  the  legation  of 
the  United  States  in  this  city,  stating-  that  Mr.  N.  A.  Paquet,  the  attor- 
ney in  fact  of  Mr,  Lorenzo  Mereado,  has  withdrawn  all  claims  which 
have  been  presented  to  this  honorable  Commission  b}'  the  United  States 
of  America  on  behalf  of  Mr.  Mereado,  and  instructing  me  to  take  for- 
mal action  for  their  withdrawal.  In  consequence,  1  hereby  formall}' 
withdraw  claims  Nos.  27  and  50  from  the  further  consideration  of  the 
Commission. 

Very  respectfully,  Robert  C.  Morris, 

Agent  of  the  United  States. 

Caracas,  Venezuela,  August  15^  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America  and 
the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  ^ 
of  the  heirs  of  Charles  Raymond,  claim 
ants,  rNo.  51. 

V. 

The  Republic  of  Venezuela. 

This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimants,  and  was  supported  at  the  time  of  presentation  by  the  agent 
of  the  United  States  in  an  oral  argument.  A  brief  was  hied  by  the 
agent  of  Venezuela  in  answer  and  a  brief  was  filed  by  the  agent  of  the 
United  States  in  replication. 

[Translation.] 

Heirs  of  Charles  Raymond  \ 

V.  y  Claim  No.  51. 

Venezuela.  ) 

ANSWER. 

Honorable  memhers  of  the  Venezuelan- American  Mixed  Comniission: 
The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  bj^  the  heirs  of  Charles  Ra^^mond,  an  American 
citizen,  and  respectfully  informs  this  tribunal: 


This  claim  arises  out  of  a  contract  of  charter  party  made  by  the 
Government  of  Venezuela  in  the  year  1S69  with  flean  Ovide  Preve- 
reaud  de  Sonne ville,  who  represented  himself  as  the  owner  of  the  English 


REPORT  OF  ROBERT  C.  MORRIS.  523 

steamer  Irene,  the  object  of  the  contract.  Said  Sonneville  alleged  that 
the  Government  had  failed  to  perform  the  covenants  agreed  to,  and 
after  several  extrajudicial  representations  before  the  political  autliori- 
ties  he  brought  suit  against  the  nation  in  tlie  high  federal  court  to 
enforce  the  contract  and  the  payment  for  damages  and  injuries.  The 
action  after  some  time  remained  at  a  standstill  from  neglect  charge- 
able to  the  claimant.  Later  the  claimant  attempted  to  introduce  his 
claim  before  the  Mixed  Franco- Venezuelan  Commission  in  his  capacity 
of  a  French  citizen;  but  the  French  representative  in  Venezuela  dis- 
allowed it  because  he  considered  it  an  English  claim,  taking  the  stand, 
undoubtedly,  that  the  true  owner  of  the  steamer  Irene  was  an  English 
subject.  Not  being  satisfied  with  that  decision,  which,  as  is  seen, 
decided  the  case  irrevocably,  the  claimant  sought  the  aid  of  the  depart- 
ment of  foreign  relations  of  the  French  Republic,  which  threw  out 
the  demand  anew  because  it  was  not  in  accord  witli  the  stipulations  of 
the  treaty  of  November  ^6,  188.5,  entered  into  bv  France  and  Vene- 
zuela. After  this  last  failure  the  claimant  did  not  again  press  the 
matter. 

II. 

The  claim  of  the  heirs  of  Raymond  is  founded  on  the  fact  that  Sonne- 
ville made  to  their  predecessor  in  interest  an  assignment  of  properties, 
imder  date  of  the  2l»th  of  April,  1890,  in  w4iich  they  consider  included 
the  right  to  claim  against  the  Government  of  Venezuela  for  the  reasons 
heretofore  expressed,  as  will  be  seen  from  the  mere  inspection  of  the 
document  of  assignment  amongst  the  properties  which  are  specifically 
assigned,  the  right  to  this  claim  does  not  appear  to  be  included,  and  it 
is  not  possible  to  presume  for  any  good  reason  that  it  was  the  intentioii 
of  the  assignor  to  transfer  it  to  his  creditor,  much  less  if  it  be  consid- 
ered that  the  estimated  value  of  said  properties  wdiich  appears  in  that 
document  amounted  to  a  sum  greater  than  that  which  was  owed  to 
Raymond  b}'  Sonneville.  When  there  is  question  of  the  alienation  of 
rights,  it  is  evident  that  the  intention  of  parties  ought  to  appear  in  an 
express  and  definite  manner.  The  claim  against  Venezuela  had  been 
prosecuted  a  long  while  prior  to  the  assignment,  and  if  it  was  not 
included  it  was  because  it  was  thought  to  be  extinguished  by  the  former 
claimant,  or  because  he  wished  to  make  it  the  object  of  a  special 
reservation. 

At  all  events,  the  claim  on  the  part  of  the  Raymond  heirs  is  entirely 
without  reason. 

For  the  foregoing  considerations  the  claim  ought  to  be  disallowed. 

Caracas,  August  8,  1903. 

F.  Arroyo  Parejo. 


5*24  REPORT    OF    KOliKKT    C.    MORRIS. 

Bot'ore  the  Mixed  Commis.sion  orounized  under  the  protocol  of  Febru- 

ar}'"  17.  1903,  between  thi^  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  Aimehica  on  bp^iialf 

of  the  heirs  of  Charles  Ra\'niond,  claimants, 

r. 

The  Repuhlu^  of  Venezuela. 


No.  51. 


REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

Without  repl^iuj^-  in  detail  to  the  answer  of  the  honora})le  agent  of 
the  United  States  of  Venezuela,  we  desire  to  submit  the  following 
(jbservations  with  respect  to  the  above-entitled  claim: 

The  right  of  the  heirs  of  Charles  Raj-mond  to  claim  before  this  tri- 
bunal depends  entirely  upon  the  right  of  Ovide  de  Sonneville  to  pro- 
ceed against  the  Government  of  Venezuela,  and  we  shall,  therefore, 
for  the  present,  confine  ourselves  to  stating  what  the  rights  of  said  De 
Sonneville  were. 

In  May,  18(57,  Charles  ]SI.  Burns,  of  New  Orleans,  owed  Ovide  de 
Sonneville  the  sum  of  $35,000  American  gold,  and  being  unable  to 
meet  said  obligation,  gave  him  a  mortgage  or  bottomry  bond  upon  a 
steam  vessel  called  the  Irene.  Together  with  this  bond  he  delivered 
to  De  Sonneville  possession  of  said  vessel  and  gave  him  a  power  of 
attorney  to  sell  or  make  contracts  for  the  affreightment  or  charter 
party  of  it.  Shortly  thereafter  the  vessel,  while  in  the  possession  of 
De  Sonneville,  collided  with  another  steamer  near  the  islands  of  Bar- 
bados and  came  to  those  islands  in  a  disabled  condition.  \\\  order  to 
complete  the  repairs  necessary  to  said  vessel,  Charles  Raymond,  a  cit- 
izen of  the  United  States,  predecessor  in  interest  of  the  present  claim- 
ants, lent  De  Sonneville  the  sum  of  $2,500.  With  the  repairs  made  in 
those  islands  the  vessel  was  al)le  to  proceed  to  the  island  of  Trinidad 
where,  on  September  12,  1809,  De  Sonneville  entered  into  a  contract 
with  the  duly  accredited  representative  of  the  Venezuelan  Govern- 
ment for  the  charter  of  this  steamship,  the  Irene.,  for  a  period  of  not 
less  than  sixty  days,  giving  to  said  Government  of  Venezuela  the  right 
to  prolong  said  period  at  its  option  and  to  purchase  said  vessel  for  the 
sum  of  $30,000,  money  of  the  island  of  Trinidad.  The  contract  also 
held  the  Government  of  Venezuela  responsible  for  all  damages  to  the 
vessel  and  obligated  that  Government  to  return  the  same  in  good 
repair  to  De  Sonneville. 

On  the  23d  of  November  of  the  same  year,  or  some  days  after  the 
expiration  of  the  period  fixed  in  the  contract  as  the  shortest  time  that 
the  charter  of  the  vessel  should  endure,  the  Government  of  Venezuela 
notified  De  Sonneville  that  it  was  ready  to  return  it  to  him.  Upon 
inspection  De  Sonneville  learned  that  the  vessel  was  in  bad  repair  and 
on  the  following  day  wrote  the  Government  that  the  vessel  must  eitlier 
be  repaired  or  the" cost  of  the  repairs  furnished,  or  the  price  of  the 
vessel  paid  to  him.  Neither  of  these  three  alternatives  was  performed 
by  the  Venezuelan  Government,  and  the  vessel,  after  having  been 
abandoned,  was  allowed  to  sink. 

For  several  years  De  Sonneville  made  claim  before  the  various  offi- 
cials of  the  Venezuelan  Government  in  the  name  of  his  constituent, 
Charles  M.  Burns,  and  later  before  the  Venezuelan  courts  and  the 


REPORT  OF  ROBERT  C.  MORRIS.  525 

Franco- Venezuelan  Mixed  Commission  without  success.  During  all 
this  time  De  Sonnevilie  claimed  in  the  name  of  his  constituent,  but  in 
a  letter  to  the  secretary  of  foreign  affairs  of  the  French  Republic,  dated 
Ma}-  8,  1890,  De  Sonnevilie  stated  that  the  steamship  was  his  own 
property,  but  that,  as  the  English  law  would  not  permit  the  registry 
of  a  ship  under  the  English  flag  wdiich  was  owned  by  a  foreigner,  he 
had  resorted  to  having  Mr.  Burns  made  nominally  the  owner  of  the 
vessel  and  had  taken  from  him  the  bottomry  bond  for  the  value 
thereof.  There  is  no  other  information  on  this  subject  than  the  asser- 
tion of  De  Sonnevilie,  but  whoever  ma}^  have  been  the  real  owner  of 
the  steam  vessel  Irene^  it  conclusively  appears  from  the  documents 
submitted  in  evidence  that  De  Sonnevilie  was  at  least  interested  in 
said  vessel  to  the  extent  of  $35,000,  and,  as  he  agreed  with  the  Vene- 
zuelan Government  for  the  sale  of  said  vessel  for  the  price  of  130,000. 
it  is  reasonable  to  suppose  that  the  property,  if  any,  of  Burns  in  said 
steamship,  was  insigniticant. 

A  bottomry  bond,  which  is  a  chattel  mortgage  of  a  ship,  given  as 
security  for  'money  loaned,  has  this  peculiar  characteristic,  that  the 
vessel  upon  which  such  bottomry  is  taken  out  is  the  sole  security  for 
the  money  loaned,  and  if  it  be  lost  the  mortgagee  loses  all  right  of 
recovery  "against  the  mortgagor.  Such  was  the  position  of  De  Sonne- 
vilie, unless  he  be  considered  the  owner  of  the  vessel,  when  he  char- 
tered it  to  the  Venezuelan  Government.  As  such  mortgagee  De 
Sonnevilie  was  entitled  to  receive  the  first  §35,000  that  should  result 
either  from  the  earnings  or  sale  of  said  vessel.  The  Government  of 
Venezuela  entered  into  a  solemn  obligation  with  De  Sonnevilie  to 
charter  said  vessel  from  him,  and  agreed  to  pay  him  therefor  a  rent  of 
$100  per  day  and  in  case  of  loss  of  the  vessel  to  pay  him  the  sum  of 
$30,000.  IJp  to  the  time  of  his  death  the  Venezuelan  Government 
never  paid  De  Sonnevilie  any  money  except  the  $5,000  on  account, 
acknowledged  to  have  been  received  by  him  in  the  recitals  of  the 
contract. 

As  appears  from  the  olographic  will  of  De  Sonnevilie,  made  in  1878, 
and  herewith  submitted  in  evidence,  it  was  his  wish  and  desire  that 
Raymond  and  his  heirs  should  be  reimbursed  for  the  loan  which  Ray- 
mond had  made  him  and  which  up  to  the  time  of  his  death  he  had 
never  been  able  to  return. 

By  this  will  De  Sonnevilie  bequeathed  to  Raymond  all  his  proper- 
ties and  his  right  to  claim  against  the  Government  of  Venezuela  up  to 
the  amount  of  his  debt,  with  interest  from  the  date  it  was  contracted, 
making  other  dispositions  with  respect  to  any  residue  that  there  might 
be  over  and  al)ove  this  amount  in  the  following  manner:  $5,000  to 
Florence  Raymond,  the  godchild  of  De  Sonnevilie  and  one  of  the 
claimants  herein,  and  anything  over  and  above  that  to  his  brother  and 
.sister,  then  residing  in  France. 

In  1800  De  Sonnevilie  executed  another  instrument  in  the  form  of  a 
general  assignnuMit  to  Raymond,  therein  reciting  that  he  had  no  heirs. 
No  doubt  between  the  tinie  of  making  his  will  in  1878  and  the  execu- 
tion by  him  of  the  assignment  in  1890  his  brother  and  sister  had  died 
without  issue. 

The  properties  left  by  De  Sonnevill(>  consisted  mainly  of  coffee 
groves.  Upon  these  projperties  Raymond  or  his  heirs  have  never  been 
able  to  realize  anything,  as  is  shown  by  the  affidavit  of  Mr.  Ascanio 
Negrctti,  the  attornev  in  fact  of  Raymond,  whicli  is  herewith  submitted 


r)l>()  REPORT  OF  ROBERT  C.  MORRIS. 

in  midonce.     Thosc^  properties  to-day  aro  in  a  state  of  dilapidation  and 
of  no  value. 

Whether  De  Sonnevillc  was  the  owner  of  the  steamship  Irene  or 
merely  the  mortgagee,  there  can  be  no  question  of  the  fact  that  he  had  a 
claim  auainst  the  Govennneiit  of  Venezuela  l)y  virtue  of  the  contract  of 
Septenil)er  12.  18(i!'.  and  his  lien  upon  said  ship  to  the  extent  of  135,000, 
United  States  gold,  evidenced  by  the  bottomry  bond.  ^  This  contract 
was  made  by  the  dulv  authorized  representative  of  Jose  Kuperto  Mo- 
nagas,  the  Tresident "of  Venezuela,  with  Do  Sonneville  ])efore  the  Ven- 
ezuelan consul,  Francisco  A.  Paul,  at  Tort  of  Spain.  The  Government 
of  \'enezuela  has  never  challenged  the  validity  of  this  contract,  and 
indeed  it  has  fullv  recognized  it  by  the  letter  of  Ignacio  Salon  to  De 
Sonneville,  dated^November  23,  1809.  As  has  been  stated  above,  the 
claimant  endeavored  by  every  means  in  his  power  to  secure  the  pay- 
ment due  under  this'  contract  by  the  Government  of  Venezuela, 
])ut  failed  in  every  attempt.  He  then  presented  his  claim  to  the  rep- 
resentative of  the  French  Government  for  submission  to  the  French- 
Venezuelan  Claims  Commission,  organized  under  the  treaty  of  Novem- 
ber 26,  1885;  ])ut  the  French  representative,  misunderstanding  the 
nature  and  the  origin  of  the  claim,  declined  to  submit  it. 

De  Sonneville  then,  in  consideration  of  the  debt  contracted  with 
Raymond  and  his  friendship  for  him,  executed  the  general  assignment 
to  him  of  all  his  present  and  future  properties.  This  assignment  was 
accepted  by  Mr.  Ascanio  Negretti,  as  representative  of  Raymond.  In 
this  assignment  were  specifically  included  certain  coffee  estates  and 
their  appurtenances.  These  estates,  as  stated  above,  were  never  real- 
ized upon  and  are  at  the  present  time  practically  valueless. 

On  June  15,  1893,  De  Sonneville  died,  leaving  no  heirs.  It  then 
appeared  that  he  had  left  the  will  above  mentioned,  by  which,  as  we 
have  seen,  he  provided  for  the  payment  of  his  debt  to  Raymond  and 
for  certain  other  residuary  legacies.  Interpreting  the  two  documents 
referred  to,  it  was  evidently  the  intention  of  De  Sonneville  that,  if 
possible  before  his  death,  at  any  rate  after,  Raymond  should  be  paid 
the  full  amount  of  the  debt,  together  with  interest;  that  the  legacy 
provided  for  in  the  will  should  then  be  paid  to  his  godchild,  and  that 
svhatever  propertv  might  then  remain  should  belong  to  Raymond. 
Under  this  view  of  the  assignment  and  the  will  it  is  evident  that  the 
heirs  of  Charles  Raymond  have  a  perfect  right  to  the  ownership  of  the 
claim  of  De  Sonneville  against  the  Republic  of  Venezuela. 

Interpreting  the  assignment  separately,  then,  we  may  say  that  it 
conveved  all  present  and  future  properties,  necessarily  therefore 
including  this  claim.  If  this  assignment  w^ere  construed  not  to  include 
the  claim  against  Venezuela,  then  (save  as  the  will  created  charges  in 
favor  of  Charles  Ravmond  and  Florence  Raymond)  this  claim  would 
remain  undisposed  of,  De  Sonneville,  as  appears  from  the  assignment, 
l)eing  then  without  heirs.  A  construction  leaving  part  of  the  testator's 
prop°  rty  without  disposition  should  be  avoided  as  a  matter  of  legal 
principle. 

As  to  the  manner  of  interpreting  the  assignment  and  in  support  ot 
the  above  view,  we  submit  in  evidence  herewith  the  opinions  of  various 
eminent  Venezuelan  lawyers  referred  to  in  the  record. 

If  the  interpretation  above  insisted  on  be  not  correct,  a  contention 
we  can  not  for  a  moment  admit,  even  then  under  the  will  of  De  Sonne- 
ville the  heirs  of  Charles  Ravmond  have  a  right  to  claim  from  the 


REPORT  OF  ROBERT  C.  MORRIS.  527 

Republic  of  Venezuela  the  sum  of  $2,500  United  States  gold,  with 
interest  at  the  rate  of  6  per  cent  (this  being  the  legal  rate  of  the 
province  where  the  debt  was  contracted)  from  October  9,  1868;  the 
right  to  claim  for  the  payment  of  the  legacy  of  ^5,000  gold  to  Florence 
Ra3'mond,  and  also  the  right  to  claim  for  an  allowance  for  attorney'^ 
fees  and  the  expenses  of  administration. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United  States  and  Venezuelan  Commission,  sitting  at  Caracas^ 

Venezuela. 

The  United  States  of  America  on  behalf] 

of  the  heirs  of  Charles  Raymond,  deceased,      i  ^      k-. 

v.       ^  I        "       * 

The  Republic  of  Venezuela.  J 

DECISION. 

Opinion  by  Bainbridge,  Commissioner. 
The  Commission  disallows  the  claim. 
November  11,  1903. 

United  States  and  Venezuelan  Claims  Commission,  sitting  at  Caracas,, 

Venezuela. 

The  United   States  of  America  on  behalf  ] 
of  heirs  of  Charles  Raymond,  deceased,  j 

claimants,  V  Claim  No.  51. 

V.  I 

The  Republic  of  Venezuela.  J 

Bainbridge,  Commissiotier: 

It  appears  from  the  evidence  that  on  May  1,  1807,  one  Charles  M.. 
Burns,  a  subject  of  (Jreat  Britain,  being  indebted  to  Ovide  de  Sonnc- 
ville,  a  French  subject,  in  the  sum  of  $85,000,  executed  and  delivered 
to  the  latter  at  New  Orleans  a  mortgage  or  bottomry  bond  upon  a  cer- 
tain steam  vessel  owned  l)y  Burns  called  the  Irene.  At  the  same  time 
Burns  gave  Dc  Soniicville  power  of  attorney  to  sell  the  vessel  or  to 
make  contracts  for  the  ali'reightment  or  charter  party  thereof,  and  to 
collect  all  sums  that  may  be  due  said  steamship. 

De  Sonneville  took  possession  of  the  vessel  and  made  a  voyage,  first 
to  Barbados,  and  thence  to  the  island  of  Trinidad.  Near  Barbados 
the  Irerui  collided  with  another  steamer,  and  in  order  to  pay  for  the 
repairs  rendcM-ed  necessary  by  the  accident  De  Sonneville,  on  October 
9,  1808,  bori-owed  from  'Charles  Raymond,  a  citizen  of  the  United 
States,  the  sum  of  fc>,.500. 

At  Trinidad  on  September  12,  180!),  De  Sonneville,  as  attorney  in 
fact  of  Charles  F.  l>urns,  entered  into  a  contract  with  one  (Jeorgc 
Fitt,  as  representative  of  the  Venezuelan  (iovernment,  for  the  charter 
of  the  L^ene  for  a  period  of  not  less  than  sixty  days,  at  the  stipulat(>d 
rate  of  $100  per  day.  The  contract  provided  that  the  Government 
should  be  responsible  for  all  expenses  and  risks  of  the  steamer,  and 


528  HKl'OKT    OF    R01?ERT    C.   MORRIS. 

lluit  in  c'lisv'  slu'  wi'i'o  lust  or  surt'or  tiny  very  severe  chunao-o  thtit  nii^ht 
reniler  hov  useless,  then  her  Viihie,  tixed  at  $3*»,000,  should  be  paid  to 
De  Sonneville.  Fitt  paid  Do  Sonneville  the  sum  of  $5,000  at  the  time 
of  the  oontraet  in  order  to  free  the  vessel  from  ohlioations  which 
caused  her  detention  at  Port  of  Spain,  and  this  sum  De  Sonneville 
ati'reed  to  credit  upon  the  amount  the  ship  mi^-ht  earn  under  the  char- 
ter. The  contract  also  stipulated  that  the  li\')u\  "being-  of  English 
nationality,"  could  not  l)e  engaged  in  a  naval  combat  or  be  used  for 
any  operations  from  Avhich  the  law  of  nations  prohi))its  a  foreign  vesseh 

On  November  ^O.  l.S6*J,  the  (xovernment  of  Venezuela  notified  De 
Sonneville  that  the  charter  having  expired,  he  might  take  possession 
of  the  Irene,  and  that  his  account  for  the  charter  would  be  liquidated. 
Do  Sonneville,  however,  refused  to  receive  the  steamer  because  of  seri- 
ous injury  suti'ered  by  the  vessel  in  one  of  her  boilers  on  October  17 
previous,  and  insisted  that  the  Government  of  Venezuela  either  repair 
the  injury  or  pay  the  price  stipulated  in  the  contract  for  the  vessel. 
On  November  27,  1869,  De  Sonneville,  ''in  the  name  and  represen- 
tation of  Charles  M.  Burns,  subject  of  Her  Britannic  Majesty,"  made 
a  protest  before  the  register  at  Puerto  Cabello;  and  on  December  1, 
1869,  "as  attorney  of  Mr.  Charles  Burns,  a  subject  of  Her  Britannic 
Majesty,"  he  made  protest  before  the  British  vice-consul  at  Puerto 
Cabello  in  regard  to  the  action  of  the  Venezuelan  authorities  and  the 
injuries  sustained  b}^  the  steamer  Irene,,  "the  exclusive  property  of 
said  Charles  M.  Burns." 

On  December  15, 1869,  De  Sonneville  addressed  a  communication  to 
Venezuelan  minister  of  war  and  navy,  stating  that  he  was  obliged  to 
leave  the  Irene  in  the  possession  of  the  Government  until  the  contract 
was  complied  with,  and  considering-  it  in  the  service  of  the  Republic; 
but  suggesting  that  a  commission  be  appointed  to  examine  it,  and  if 
found  in  the  same  state  in  which  was  delivered  he  would  receive  it 
back,  and  that  if,  on  the  contrar}",  the  commission  should  find  that  repairs 
were  needed  the}"  should  be  made  at  the  cost  of  the  Government. 

De  Sonneville  eventually  abandoned  the  ship  and  for  many  years  con- 
tinued to  urge  his  claim  upon  the  Government.  In  1873  he  instituted 
proceedings  in  the  high  federal  court,  but  the  suit  was  subsequently 
withdrawn.  All  of  his  efforts  to  obtain  an  adjustment  of  his  claim 
proved  fruitless. 

In  1878  De  Sonneville  made  a  holographic  will,  in  which  he  declared 
himself  indebted  to  Charles  Raymond  in  the  sum  of  $2,500,  with  inter- 
est, and  desired  that  after  his  death  his  property  should  be  used  to 
satisfy  said  indebtedness,  and  particularly  setting  forth  that  if  the 
otherproperty  left  by  him  should  not  be  sufficient  for  that  purpose, 
the  necessary  sum  should  be  appropriated  out  of  any  recovery  made 
on  his  claim  against  Venezuela  occasioned  by  the  loss  of  the  Irene.  He 
left  to  Florence  Ra3'mond,  daughter  of  Charles  Raymond,  the  sum  of 
$5,000,  and  the  surplus  to  his  brother  and  sister  in  France. 

In  April,  1890,  De  Sonneville  executed  an  assignment  to  Raymond 
of  all  his  "present  and  future  properties"  in  order  to  pay  the  indebt- 
edness due  the  latter.  The  assignment  states  that  "the  properties 
which  I  give  him  in  payment  are  the  following,"  enumerating  some 
fourteen  different  pieces  of  property,  but  not  including  the  claim 
against  the  Government  of  Venezuela.  De  Sonneville  died  on  June 
15,  1893. 


REPORT  OF  ROBERT  C.  MORRIS.  529 

A  claim  is  now  presented  here  on  behalf  of  the  heirs  of  Charles  Ra}'- 
mond,  as  follows: 

Value  of  vesifel,  as  stipulated  in  contract $30, 000 

127  days'  hire  of  vessel  from  September  15,  1869,  to  January  20,  1870,  when 

abandoned 12,  700 

130  tons  of  coal,  at  $12  per  ton 1,566 

44, 260 
Credit  payment  on  account,  September  12,  1869 5,000 

Balancedue  January  20, 1870... 39,260 

Interest  at  3  i)er  cent  from  January  20,  1870 39,  260 

Total 78,520 

Notwithstanding  the  fact  that  De  Sonneville  made  the  contract  with 
the  representative  of  Venezuela  for  the  charter  of  the  Irene  as  attor- 
ney in  fact  of  Charles  M.  Burns,  and  subsequently  made  his  protests 
in  the  name  and  representation  of  Burns  as  the  owner  of  the  steamer, 
it  is  quite  evident  that  Burns's  interest  in  the  boat  was  merely  nominal. 
The  debt  of  Burns  to  De  Sonneville,  secured  b}^  the  bottomry  bond,  was 
$35,000.  The  valuation  placed  upon  the  boat  in  the  contract  with  Pitt 
was  ^30,000.  The  obvious  intention  of  the  parties  to  the  bond  was  to 
cancel  Burns's  obligation,  and  the  explanation  given  of  the  transaction 
is  that  Burns's  nominal  ownership  would  entitle  the  li^ene  to  fiy  the 
English  flag,  under  which  it  was  desired  she  should  sail.  De  Sonne- 
ville was,  at  an}'  rate,  in  lawful  possession,  duly  empowered  b}'  Burns 
to  make  out  of  the  sale  or  use  of  the  vessel  the  amount  of  the  debt: 
and  the  question  at  the  base  of  De  Sonneville's  claim  is  his  beneficial 
interest  in  the  contract  with  the  Government  of  Venezuela  and  the 
rights  accruing  to  him  from  its  breach.  Apparently  that  interest  did 
not  exceed  the  amount  which,  under  the  bond  and  power  given  by 
Burns,  he  was  entitled  to  receive  from  the  use  or  sale  of  the  vessel, 
leaving  Burns  no  equitable  interest  whatever  in  any  claim  arising  out 
of  the  contract. 

De  Sonneville  was  a  French  subject,  and  the  Commission  has  no 
jurisdiction  of  his  claim  against  Venezuela  except  in  so  far  as  by 
proper  assignment  or  transfer  it  may  have  become  the  property  of 
citizens  of  the  United  States.  The  contention  made  here  on  ])ehalf  of 
the  claimants  is  that  they  are  owners  of  De  Sonneville's  claim,  either, 
first,  as  a  whole  under  the  assignment  of  1890,  or,  second,  under  the 
will  of  1878  of  so  much  of  the  claim  as  the  amount  of  De  Sonneville's 
indebtedness  to  Raymond,  with  interest,  and  the  amount  of  the 
bequest  to  Florence  Raymond. 

The  assignment  of  April  29,  1890,  recites  the  indebtedness  due  to 
Raymond,  and  states:  '"In  order  to  pay  that  debt  I  hand  over  to  him 
all  ni}'  present  and  future  properties,  as  1  have  no  heirs,''  and  that 
''the  properties  which  I  gi\e  him  in  payment  are  the  following," 
enumerating  fourteen  diflerent  pieces  of  property. 

These  properties  are  represented  in  the  assignment  to  })e  worth 
25,000  bolivars,  free  from  all  encumbrances,  aniuiity,  or  mortgage. 
It  is  alleged  that  frequent  attempts  were  made  after  De  Sonne ville's 
death  to  realize  on  the  properties  specifically  enumerated  in  the 
assignment,  but  without  success,  and  that  although  at  one  time  the 
said  properties  may  have  had  some  value,  it  consisted  principally  in 

S.  Doc.  317,  58-2 34 


530  REPORT  OF  ROHKRT  C,  MORRIS. 

tlie  I'offcc   (jrovcs  which  have  since  become  mined,  and  that  these 
proptM-ties  are  at  present  ahsohitely  worthless. 

Aniontir  the  properties  which  De  Sonneville  ""o-ave  in  pa^ynient"  by 
the  assio-nnient,  the  chiini  against  Veneziu^la  does  not  appear.  There 
is  certainly  no  reason  to  infer  that  De  Sonneville  intended  to  include 
it,  inasnuich  as  the  estimated  value  of  the  property  enumerated 
exceeded  the  amount  of  the  debt.  The  t>-eneral  terms  are  controlled 
by  the  specitic  enumeration,  which  evidently  expresses  the  definite 
intention  of  the  assig-nor,  and  to  which  in  construction  the  conveyance 
must  be  limited.  Expressio  unius  exclusio  alterius.  The  position 
that  the  Kaymond  heirs  are  owners  of  the  De  Sonneville  claim  as  a 
whole  under  the  assig-nment  is  clearly  untenable. 

The  allejj^ed  holographic  will  of  De  Sonneville  bears  date  November 
1(5,  1878.  Substantially  it  states  that  desiring-  as  far  as  possible  to 
repair  the  losses  he  has  occasioned  to  his  excellent  friend,  Mr.  Charles 
Raymond,  of  New  Orleans,  by  the  want  of  punctuality  on  the  part  of 
the  Republic  of  Venezuela  toward  himself,  he  declares  himself 
indebted  to  Raymond  or  to  his  legitimate  heirs  in  the  sum  of  |2,5()0, 
which  Raymond  had  delivered  to  him  at  the  English  island  of  Barbados 
in  October,  1868,  to  cover  the  expenses  of  repairs  which  had  been 
occasioned  by  the  collision  of  another  steamer  with  his  own;  that  if  the 
debt  should  not  be  paid  before  his  death  he  desired  that  his  property 
should  be  used  for  its  payment,  and  that  the  surplus  should  then 
become  the  property  of  his  goddaug'hter,  Florence  Ra3miond;  and 
that  being  a  creditor  of  the  Republic  of  Venezuela  of  a  debt  occasioned 
by  the  charter  of  a  steamer,  the  said  credit,  after  its  recovery,  he 
wished  to  be  distributed  as  follows:  If  the  properties  left  by  him 
were  not  sufficient  to  pay  the  debt,  with  interest,  of  Charles  Raymond, 
the  necessary  sum  should  be  employed  for  that  purpose  out  of  the 
money,  and  to  his  goddaughter,  Florence  Raymond,  the  sum  of 
$5,000  should  be  paid,  the  surplus  to  go  to  his  brother  and  sister  in 
France. 

Two  witnesses  certify  to  the  foregoing  instrument  and  that  De  Son- 
neville had  declared  to  them  that  in  case  of  his  death  he  desired  the 
disposition  made  therein  to  be  put  into  eif'ect  by  the  French  consular 
authorities. 

There  is  no  evidence  presented  that  this  instrument  was  ever  legally 
proved  as  the  last  will  and  testament  of  De  Sonneville,  or  that  there 
has  ever  been  an  administration  of  his  estate.  A  wnll  must  be  proved 
before  a  title  can  be  set  up  under  it,  and  so  far  as  the  adequacy  of  its 
execution  isjconcerned,  the  probate  must  be  according  to  the  law  of 
the  testator's  last  domicile.  In  the  absence  of  such  proof,  the  docu- 
ment in  question  must  be  held  inoperative  to  pass  any  rights  whatso- 
ever. The  probate  jurisdiction  of  this  Commission  is  believed  to  be 
extremely  limited. 

The  evidence  shows  that  in  order  to  make  the  repairs  rendered  neces- 
sary })y  the  collision  of  the  Irene  with  another  steamer  near  Barbados, 
De  Sonneville  borrowed  from  Raymond  on  October  9,  1863,  the  sum  of 
^2,500.  The  expenditure  of  this  money  in  necessar}^  repairs  in  a  for- 
eign port  created  a  lien  in  Ra3'mond's  favor  upon  the  vessel.  The 
presumption  of  law  is  that  when  advances  are  made  to  the  captain  in 
a  foreign  port  upon  his  request  for  the  necessar}^  repairs  or  supplies 
to  enable  his  vessel  to  prosecute  her  voyage,  or  to  pay  harbor  dues,  or 
for  pilotage,  towage,  or  like  services  rendered  to  the  vessel,  the}^  are 


REPORT  OF  ROBERT  C.  MORRIS.  531 

made  upon  the  credit  of  the  vessel  as  well  as  upon  that  of  her  owners. 
It  is  not  necessary  to  the  h3'^pothecation  that  there  should  be  any 
express  pledge  of  the  vessel  or  any  stipulation  that  the  credit  should 
be  given  on  her  account.  (The  Emilv  B.  Snider  v.  Pritchard,  17  Wall., 
{}66;  Hazlehurst  r.  The  Sulu,  10  Wall.,  192;  Merchants'  Mn.  Ins.  Co. 
V.  Baring,  20  Wall.,  159.) 

"It  is  notorious,"  says  Mr.  Justice  Story,  in  T/ie  Ship  Virgin,  8 
Pet.,  203,  "that  in  foreign  countries,  supplies  and  advances  for 
repairs  and  necessary  expenditures  of  the  ship  constitute,  b}'  the  gen- 
eral maritime  law,  a  valid  lien  on  the  ship." 

In  Wilson  v.  Bell,  20  Wall.,  201,  the  Supreme  Court  of  the  United 
States  say: 

The  ordering,  by  the  master,  of  supplies  and  repairs,  on  the  credit  of  the  ship,  is 
sufficient  proof  of  such  necessity,  to  support  an  impUed  hypothecation  in  favor  of 
the  material  man  or  the  lender  of  money  who  acts  in  good  faith. 

Under  the  foregoing  principles  of  maritime  law  it  is  clear  that  Ray- 
mond held  a  lien  upon  the  Ire7ie  for  the  advances  made  by  him  at  De 
Sonnevi lie's  request,  and  expended  by  the  latter  in  the  necessary 
repairs.  Raj^uond's  lien  followed  the  ship  when  the  Venezuelan 
Government  took  possession  of  her  under  the  charter  party  of  Sep- 
tember 12,  1869. 

It  is  the  very  and  essence  of  a  lien  that,  no  matter  into  whose  hands  the  property 
goes,  it  passes  cum  onere.     (Burton  v.  Smith,  13  Pet.,  464.) 

In  Myer  v.  Tupper  (1  Black.,  522),  it  was  held  that  where  respond- 
ents purchased  without  notices  of  a  lien  for  repairs  or  supplies  in  a 
foreign  port,  their  want  of  caution  in  this  respect  could  not  deprive 
the  libellants  of  a  legal  right  they  had  done' nothing  to  forfeit. 

Mr.  Raymond,  therefore,  might  have  pressed  his  remedy  against 
the  Government  of  Venezuela  in  virtue  of  his  lion  upon  the  vessel  to 
the  extent  of  his  interest  in  case  of  the  violation  of  the  contract  under 
which  the  Government  obtained  possession,  or  he  could  rely  upon  the 
personal  responsibility  of  De  Sonneville  for  the  debt.  It  is  quite  evi- 
dent that  Raymond  chose  the  latter  of  these  alternatives.  His  claim 
against  De  Sonneville  appears  to  haA'e  been  in  the  hands  of  Venezuelan 
lawA^ers  for  a  number  of  years.  Finally,  on  April  29,  1890,  De 
Sonneville,  in  order  to  discharge  the  debt  to  Raymond,  executed  the 
assignment  transferring  the  property,  specified  pieces  of  property 
"which  represent  25,000  bolivars  value,  free  from  all  incumbrances, 
annuity,  or  mortgages."  And  one  Ascanio  Negretti,  lawyer,  "with 
power  of  attorney  from  Chailes  Raymond,"  accepted  this  transfer. 
In  accordance  with  law,  this  assignment  was  registered  in  the  registry 
of  Altagracia  de  Orituco,  on  Ma,y  16,  1890,  and  also  in  the  French 
legation  at  Caracas  on  October  21,  1891.  The  valuation  of  25,000 
bolivars  pla(;ed  upon  the  property  thus  ti'ansferred  in  satisfaction  of 
the  debt  is  included  in  the  insti'ument  signed  by  both  De  Sonneville 
and  the  representative  of  Jiaymond,  jftid  nmst  be  regarded  as  a  part  of 
the  agreement.  It  etpials,  if  it  does  not  excel,  the  amount  due  at  tlu> 
time. 

The  acceptance  of  this  transfer  discharged  the  debt  of  De  Sonneville 
to  Raymond  and  canceled  any  claim  which  Raymond  might  ha\  (>  had 
against  the  (iovernment  of  Venezuela  in  virtue  of  his  lien  upon  the 
steamer.  The  lien  could  exist  after  the  debt  was  paid.  As  the 
assignment   of    the   projx'rty    specified   was    received    in    discharge 


532  REPDRT  OF  KOBKRT  C.  MORRIS. 

of  a  nionov  de])t  due  from  Do  Sonneville,  it  is  in  judgment  of  law  to 
]>o  eonsidered  as  tiie  same  thing  as  if  De  Sonnc\'iil(^  had  actually  paid 
money  to  the  amount  agreed  upon  in  the  assignment  as  being  the 
value  of  the  property  transferred.  The  subsequent  depreciation  in 
value  can  not  opei-ate  to  revive  the  debt. 
The  claim  nuist,  therefore,  i)c  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


The  United  States  of  America  on  behalf 
of  the  heirs  of  Charles  Raymond,  deceased, 
claimants, 

V. 

The  Republic  of  Venezuela. 


No.  51. 


Doctor  Grisanti,  Coim)iissio7ie7\' 

Elizabeth  Wild  Raymond,  widow  of  Charles  Raymond,  deceased, 
Anna  J.  Raymond,  Elizabeth  E.  Ra3'mond,  Letitia  J.  Raymond, 
Florence  A.  Raymond,  Edwin  J.  Raymond,  Charles  J.  Raymond,  and 
Victoria  R.  Gauche  (nee  Raymond),  children  of  said  Charles  Raymond, 
deceased,  claim  of  the  Government  of  Venezuela  payment  for  $78,520 
as  capital  and  interests  of  a  credit  which  they,  sole  heirs  at  law  of 
the  mentioned  Charles  Raymond,  deceased,  pretend  holding  against 
A  enezuela. 

The  history  of  the  claim  is  as  follows: 

On  September  12,  18(39,  a  contract  was  signed  at  Port  of  Spain 
between  George  Fitt,  acting  on  behalf  of  the  citizen,  Gen.  Jose  Ruperto 
Monagas,  at  that  time  President  of  Venezuela,  and  Ovide  de  Sonne- 
ville,  acting  as  proxy  for  Mr.  C'harles  M.  Burns,  owner  of  the  British 
vessel  Irene^  in  virtue  of  which  contract  Fitt  chartered  said  vessel 
Irthc^  having  on  board  130  tons  of  coal,  for  the  service  of  carrying 
troops  on  account  of  the  Government  of  Venezuela  (art.  1). 

Ovide  de  Sonneville  received  from  George  Fitt  $5,000  with  which 
he  paid  the  debts  of  the  vessel  in  Port  of  Spain,  and  for  which  debts 
she  was  there  detained  (art.  2). 

Both  contracting  parties  agreed  that  if  the  Government  of  Venezuela 
decided  to  buy  the  vessel,  the  price  should  })e  $30,000;  if  not,  the  vessel 
would  continue  chartered  at  the  rate  of  $100  per  day  for  a  term  of 
no  less  than  sixty  da3^s,  it  being  a  formal  condition  of  said  contract 
that  the  Government  of  Venezuela  on  the  expiration  of  said  term,  or 
other  term  which  the  parties  might  agree  to  extend,  should,  on  return- 
ing Sonneville  the  vessel,  pay  him  the  130  tons  of  coal  above  referred 
to,  at  the  price  the  same  should  happen  to  have  at  the  port  of  the 
Repul)lic  where  the  return  takes  place;  also  that  he  should  be  paid 
such  amount  as  both  parties  might  consider  necessary  for  conducting 
.said  vessel  to  the  harbor  of  Port  of  Spain,  and  also  the  extra  pieces 
lost  or  worn  out  (art.  3). 

In  the  hundred  dollars  per  day  stipulated  as  the  rent  for  the  Irene 
none  of  her  expenses  were  included  therein,  all  of  which  were  on 
account  of  the  Government  of  Venezuela;  and  if  the  vessel,  during  the 
time  of  her  leaving  Port  of  Spain  up  to  that  on  which  she  was  returned 
to  Sonneville,  should  be  lost  or  suffered  very  serious  injuries,  such  as 
to  make  her  useless,  Sonneville  should  be  paid  her  value,  which  before- 


REPORT  OF  ROBERT  C.  MORRIS.  533 

hand  was  fixed  at  $3t».000,  and  would  forthwith  be  the  properU'  of  the 
Republic.  If  the  injury  su.stained  1)y  the  vessel  were  of  easy  repair, 
the  Government  of  Venezuela  had  the  option  of  returning  her.  pre- 
viouslv  making  the  necessary  repairs  at  their  own  expense  (art.  4). 

On  November  23,  1869,  a  note  was  addressed  to  Sonneville  })y  the 
jefe  de  estado  maj^or-general  in  Puerto  Cabello  to  the  following  etiect: 

The  term  of  the  contract  for  chartering  the  vessel  Irene  having  expired,  and  the 
war  being  over,  the  Citizen  General  President  in  campaign  orders  me  to  notify  you 
thereof,  so  that  vou  mav  this  day  take  charge  of  the  mentioned  vessel  under  formal 
inventory,  and  afterwards  call  at  the  general  commandance  to  settle  your  charter 
account,  "balance  of  coal  missing  to  make  up  the  120  tons,  and  agree  as  to  the  amount 
required  for  your  sailing  to  Port  of  Spain. 

On  November  24  Sonneville  answered  denying  to  receive  the  vessel 
if  the  very  serious  injury  suffered  by  the  vessel  in  one  of  her  boilers 
on  October  IT  were  not  repaired  unless  the  Government  should  choose 
to  pay  the  price  fixed  on  the  vessel. 

Afterwards  a  discussion  followed  between  the  Government  of  Ven- 
ezuela and  Sonneville  in  reference  to  the  case,  and  steps  were  taken 
by  the  latter  to  apply  to  the  French  Government,  and  pretending  to 
apply  to  the  British  'Government  also,  for  them  to  second  his  motion 
in  the  claim  against  Venezuela.  On  April  29,  1890,  Sonneville  issued 
a  document  wherein  he  declares  to  be  a  debtor  to  Charles  Raymond 
for  the  ambunt  of  12,500  bolivars  which  he  acknowledged  to  have 
received  from  him  to  settle  his  (Sonneville* s)  account  with  the  con- 
signee of  the  British  vessel  Irene;  and  in  payment  for  that  amount  he 
assigned  to  him  the  sole  possession  of  several  properties  perfectly 
specified  in  the  forementioned  document. 

The  principal  grounds  whereon  Messrs.  Raymond  lay  their  claim 
are  the  following: 

In  the  year  1890,  as  above  stated,  Mr.  de  Sonneville  assigned  all  his  property  to 
Mr.  Charles  Raymond,  predecessor  in  interests  of  the  present  claimants.  Neither 
Mr.  Charles  Raymond  nor  Mr.  Sonneville  were  paid  any  sum  of  money  on  account 
of  the  claim. 

To  judge  of  the  lawfulness  or  unlawfulness  of  this  claim  the  fol- 
lowing point  must,  above  all,  be  examined: 

Is  or  is  not  the  mentioned  claim  included  in  the  dedition  which 
Sonneville  made  in  payment  to  Charles  Raymond,  contained  in  the 
document  drawn  at  Caracas  on  April  29,  1890,  and  registered  in  the 
subaltern  registry  office  of  the  Monagas  district  on  the  lOth  of  May 
of  the  same  year ^  In  other  woi'ds:  Did  SonneviUe  transfer  to  Ray- 
mond the  referred-to  credit  against  \'enezuela  by  virtue  of  said  dedi- 
tion in  pavment^ 

The  Venezuelan  Conunissioner  is  of  oi)iiii()n  that  the  question  put 
must  be  answered  negatively  without  the  least  vacillation.  Conse- 
(|uently,  the  claim  not  being  expressly  included  in  the  dedition  in  pay- 
ment, "it  is  excluded  from  the  same;  because  in  all  contracts,  such  as 
this,  which  have  the  object  of  alienation  of  property,  it  is  an  essen- 
tial requisite  that  the  goods  alienated  be  perfectly  determined. 

I  nuist  not  let  the  fact  go  by  thatsonu^  Venezuelan  lawyers  of  unde- 
niable knowledge  argued  that  on  the  strength  of  the  foregoing  con- 
tract Charles  Raymond  was  the  owner  of  the  claim;  but  such  is  an 
error,  and  errors  have  no  authority  however  respectable  the  persons 
who  incurred  in  them. 

This  erroneous  opinion  is  undoubtedly  derived  from  the  generality 


534  Rp:r()RT  of  kobert  c.  morris. 

of  the  terms  with  which  the  dedition  of  piivment  eommences.  Sonno- 
villesuy.s:*  *  *  "and  to  puy  that  lunount  (the  12,r)00  bolivars)  I 
deliver  him  all  my  ])resent  and  future  prop(M-ty,  as  1  have  no  heirs, 
:ind  have  on  the  other  hand  my  t>ratitude  hound  to  Mr.  Charles  Ray- 
mond, to  whom  I  am  attached  not  oidy  l)y  the  tics  of  friendship  but 
also  by  those  of  spiritual  relationship."  But  the  amplitude  and 
vauueness  of  this  clause  is  perfectly  determined  and  limited  by  the 
l)lirase  following  forthwith:  "The  j^'oods which  I  give  him  inpayment 
for  my  debt  are  the  following."  Then  said  goods  arc  specified.  The 
former  generality  must  be  interpreted  in  the  light  of  this  limitation, 
without  which  it  would  })e  deprived  of  judicial  and  even  rational  value, 
if  there  existed  onl}"  the  clause:  "I  deliver  him  my  present  and  future 
goods,"  the  contract  would  completely  lack  legal  value.  The  fact  is, 
that  when  the  dedition  in  payment  has  tlie  object,  as  in  the  present 
ease,  of  extinguishing  a  pecuniary  debt,  no  difference  exists  l)etween 
the  former  and  an  ordinary  sale;  both  contracts  are  identical.  There- 
fore the  consent  of  the  contracting  parties  is  an  essential  re(;[uisite  for 
the  existence  of  every  contract,  which  must  be  in  regard  to  the  thing 
or  price  when  it  refers  to  bujdng  or  selling,  and  in  regard  to  the  debt 
and  thing  transferred  for  payment  if  it  refers  to  a  dedition  in  payment, 
and  without  determining  these  two  elements  consent  is  impossil)le 
because  it  lacks  matter,  and  consequently  the  existence  of  the  contract 
would  also  be  impossible.  Wherefore,  if  the  dedition  in  payment 
refers  to  "present  and  future  goods,""  with  no  other  explication,  it 
would  never  have  attained  judicial  existence.  Neither  Sonneville 
would  have  known  what  he  gave  nor  Raymond  what  he  received;  and 
consent  requires  hnowledge;  consent  can  not  be  given  to  what  is  not 
known. 

If  the  principles  and  reasons  stated  were  laid  aside,  and  it  were 
attempted  to  hold  that  the  claim  being  the  property  of  Sonneville  he 
had  the  will  to  transfer  it  to  Raymond,  such  assignment  could  have 
no  effect  against  the  Government  of  Venezvela,  owing  to  its  lack  of 
visible  existence. 

Another  question:  Was  or  was  not  the  credit  of  12,500  bolivars 
extinguished  in  virtue  of  the  assignment  which,  according  to  the  pub- 
lic document  above,  refers  to  Charles  Raymond  held  against 
Sonneville? 

It  most  certainly  was.  That  is  the  natural  judicial  effect  of  an 
assignment,  and  as  the  one  in  question  is  pure  and  simple,  that  is 
to  say  that  it  is  not  subject  to  any  conditions  either  suspensive  or 
resolutorj',  the  mentioned  extinguishing  effect  took  place  definitively 
and  perpetuall}"  from  the  very  moment  of  signing  the  contract. 

It  is  alleged  that  no  price  was  able  to  be  got  for  the  sale  of  the  prop- 
erty assigned  in  paj^ment  and  that  it  fell  to  ruin.  This  fact  is  very 
unlikel}^,  as  the  transaction  was  carried  out  in  1890  at  a  time  when 
Venezuela  reached  its  greatest  material  prosperit3^  The  property 
assigned  in  payment  consisted  of  coffee  plantations,  and  at  that  time 
the  hundredweight  of  this  grain  was  worth  .  But  even  admitting 
such  allegation  to  be  a  fact,  it  could  not  revive  the  credit,  as  its 
extinction  was  complete  and  forever. 

Before  closing  the  undersigned  begs  to  state  a  few  more  remarks 
v.'hich  he  conidei's  unnecessary  but  not  irrelevant. 

In  the  charter  party  of  the  vessel  Irene^  Sonneville  appears  acting  as 


REPORT  OF  ROBERT  C.  MORRIS.  535 

proxy  for  Charles  M.  Burns,  british  subject;  the  latter  then  is  the  real 
charterer  and  the  only  owner  of  the  rights  acquired  as  such. 

When  Sonneville  thought  tliat  France  might  tender  him  some  protec- 
tion he  addressed  the  French  consul  at  Cai'acas  (December  12,  1888); 
then  the  Venezuelan-French  Mixed  Commission,  which  at  that  time  was 
sitting  here  (April  6,  1890);  then  the  minister  of  foreign  affairs  of  the 
French  Republic  (May  8,  1890),  requesting  his  help  and  advising  the 
latter  besides,  that  if  the  intervention  of  his  Government  be  considered 
imlawful  he  should  forward  the  documents  to  the  minister  of  foreign 
affairs  of  Great  Britain  with  the  view  alread}'  mentioned.  The  request 
having  pureh*  and  simply  been  denied  b}'  the  French  Government, 
and  the  documents  returned  to  Sonneville,  the  claim  arises  out  of  the 
hands  of  the  present  solicitors,  not  out  of  its  own  dust,  as  the  phoenix 
of  the  fable,  but  out  of  nothing,  that  is  to  say,  out  of  a  dedition  in 
payment  which  is  not  contained  in  it. 

in  virtue  of  the  reasons  exj)lained,  it  is  the  opinion  of  the  Venezuelan 
Commissioner  that  the  referred-to  claim  must  be  entirely  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America,  on  behalf  1 
of  the  heirs  of  Charles  W.  Raymond,  de-  | 
ceased,  y  Claim  No.  51. 

^^  I 

The  Republic  of  Venezuela.  J 

The  above-entitled  claim  is  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  the  Part  of  the  United  States  of  America. 

Carlos  F.  Grisanti, 
Commissioner  on  the  Part  of  Venezuela. 

Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

Eduardo  Calcano  Sanavria, 

Secretary  on  the  Part  of  Venezuela. 

Rudolf  Dolge, 

Seci^etary  on  the  Part  of  the  United  States  of  America. 

Delivered  November  11,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

aiy  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America,  on  behalf 
of  William  H.  Volkmar,  claimant, 

V. 

Thk  Republic  of  Venezuela. 


L  No.  52. 


This  claim  was  presented  to  the  Commission  on  the  memorial  of 
the  claimant,  and  was  supported  at  the  time  of  presentation  by  the 


536  REPORT  OF  ROHERT  C.  MORRIS. 

iiuont  of  tho  United  States  in  an  oral  argument.  A  brief  was  tiled  by 
tiio  agent  of  Venezuela  in  answer  and  a  brief  was  tiled  b}'^  the  agent  of 
the  United  States  in  replication. 

[Translation.] 

William  H.  Volkmar  | 

V.  }-No.  52. 

Venezuela.  J 

ANSWER. 

Jlonorahle  Memhers  of  the  Venezuelan -Amerlcmi  Mixed  Commissio7i: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  has  studied 
the  claim  presented  by  the  American  citizen,  William  H.  Volkmar,  and 
respectfully  shows  to  this  tribunal: 

The  claim  in  question  depends  for  its  foundation  upon  certain  dam- 
ages suli'ered  by  the  electric-light  plant  which  the  claimant  has  in 
operation  at  Puerto  Cabello,  caused  during  the  attack  w^hich  the  forces 
of  the  revolution  called  ''Legalista"  made  upon  said  city  in  the  year 
1892. 

Mr.  Volkmar  presented  his  claim  to  the  board  of  public  credit 
charged  with  examining,  qualifying,  and  admitting  the  liabilities 
against  said  revolution,  but  he  did  so  neglecting  certain  formalities 
exacted  by  the  law  in  this  matter,  on  account  of  which  the  board  found 
itself  obliged  to  disallow  it.  The  claimant  did  not  care  to  or  could  not 
correct  the  fault  under  which  his  claim  labored,  notwithstanding  the 
long  period  which  was  granted  for  that,  until,  on  the  14th  of  April, 
1896,  a  law  was  passed  by  the  National  Congress,  article  second  of 
which  contained  this  paragraph: 

First.  The  records  for  the  debt  of  the  revolution  which,  by  the  30th  of  June  of 
the  present  year,  may  not  have  been  completely  legalized,  as  well  as  the  debts  on 
account  of  ""the  floating  debt"  which,  upon  the  same  date,  shall  not  have  been 
reclaimed,  shall  be  canceled  by  the  board  of  public  credit  in  the  presence  of  the 
attorney-general  of  the  nation,  the  corresponding  acts  to  effect  which  shall  be 
executed. 

Nor  did  the  claimant  then  avail  himself  of  the  new  and  detinite 
extension  which  the  said  disposition  granted,  and  it  is  clear  that,  hav- 
ing submitted  himself  in  everything  that  concerned  his  claim  to  the 
Venezuelan  laws,  by  the  sole  fact  of  his  haying  addressed  himself  to 
the  said  board  of  public  credit,  his  right  was  extinguished,  and  he  has 
none  now  to  claim  before  this  honorable  Commission,  since  it  was  his 
own  fault  that  he  lost  it. 

Besides,  it  is  evident  that  the  claimant  consented  to  this  decision, 
because  until  now  he  has  not  begun  to  press  the  matter  either  before 
the  Venezuelan  authorities  or  before  the  representative  of  his  Gov- 
ernment, which  gives  rise  to  a  very  strong  presumption  of  the  aban- 
donment of  his  claims. 

On  the  other  hand,  the  injuries  alleged  were  caused  during  a  civil 
war  and  in  the  attack  made  upon  a  city.  It  is  well  known  that  in 
these  cases  foreigners  are  not  authorized  by  international  law  to  claim 
indemnities,  because  as  such  right  is  not  conceded  to  the  nationals  an 
odious  distinction  would  be  involved,  an  intolerable  privilege  estab- 
lished in  favor  of  the  former  with  manifest  injustice  to  the  latter.  As 
upon  other  occasions,  the  undersigned  has  had  the  honor  to  demon- 
strate, civil  war,  in  the  opinion  of  eminent  writers,  is  likened  in  its 


REPORT  OF  ROBERT  C.  MORRIS.  537 

effects  to  the  causes  of  force  majeure.     It  is  a  calamity  whose  deplora- 
ble consequences  must  affect  equally  nationals  and  foreigners. 

Besides  the  arguments  based  upon  the  law  which  the  undersigned 
has  just  made,  there  are  other  considerations,  the  exactness  and  truth 
of  which  an  inspection  would  demonstrate,  to  qualif}',  as  exaggerated 
at  least,  the  present  claim.  The  electric  light  plant  of  Puerto  Cabello 
and  its  entire  installation  are  not  worth  the  amount  claimed.  It  is  a 
primitive  installation,  one  of  the  first  which  were  ever  employed  and 
which  are  now  completelj"  out  of  use.  It  was  brought,  according  to 
personal  reports  obtained  by  your  narrator,  from  the  United  States, 
where  it  had  seen  long  and  protracted  service  in  one  of  the  cities.  Its 
age  is  sufficient  reason  for  the  irregularity  of  its  service,  which  has 
afforded  the  motive  for  frequent  claims  on  the  part  of  the  municipality 
concerning  which  the  vmdersigned  can  testify  since  he  has  been  a  mem- 
ber of  that  corporation,  and  especially  because  he  has  negotiated  said 
matters  with  the  claimant. 

For  all  the  reasons  above  expressed  the  claim  ought  to  be  disallowed. 

Caracas,  August  16,  1903. 

F.  Arroyo  Parejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  19(»3,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United   States  of  America  on  behalf  1 

of  William  H.  Volkmar,  claimant,  [^^  g2 

The  Republic  of  Venezuela.  J 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES. 

The  United  States  has  presented  in  the  above-entitled  matter  the 
claim  of  W.  H.  Volkmar,  a  native  citizen  of  the  United  States,  amount- 
ing to  84:,  100  bolivars,  for  damages  to  his  electric-light  plant,  and  for 
materials  distroyed  in  the  revolution  known  as  "Legalista,"  in  the  year 
1892.  This  revolution  overthrew  the  existing  government  and  estab- 
lished itself  in  power  as  the  de  facto  government  of  Venezuela,  and 
subsequently  esiablished  a  board  of  puljlic  credit  charged  with  exam- 
ining and  deciding  claims  arising  out  of  the  revolution. 

The  claimant  took  the  necessary  proceedings  before  "the  court  of 
first  instance  at  Puerto  Cabello  to  prove  his  claim,  and  tiled  these  pro- 
ceedings with  the  board  of  public  credit.  The  original  documents  in 
the  proceedings,  as  requested,  have  been  presented  to  this  honorable 
Commission  t)y  the  Republic  of  Venezuela.  They  were  prepared  with 
great  care  and  set  forth  in  detail  the  damages  suffered  by  the  electric- 
light  plant.  These  damages  are  ])roven  by  the  testimony  of  witnesses, 
and  as  there  was  no  liscid  to  represent  the  (lovertnnent  of  Venezuela 
in  these  proceedings,  the  judge  of  the  court  was  authorized  to  examine 
the  witnesses  and  ascertain  tlu^  facts.  The  proceeding  therefoie  was 
entirely  regular  and  in  conformity  with  the  ])rocedurc  of  Venezu('lan 
coui'ts.'^  The  evidence  thus  taken  was,  as  has  been  stated,  submitted 
to  the  board  of  public  credit,  where  the  Govermnent  of  Venezuela 
had  the  opportunity  of  disproving  the  allegations  in  the  claim.  No 
action  was  taken  by  Venezuela  in  this  matter,  but  the  claim  was  finally 


538  BEPOKT  OK  ROHEKT  C.  MORRIS. 

rojei'tod  by  tlie  board.  Tlu^  cluinuint  now  conies  before  this  honora- 
ble tribunal  in  aocordanc(>  with  the  terms  of  the  pi-otoeol  and  presents 
bis  claim  for  adjudication. 

In  the  answer  of  Venezuela  it  is  contended  that  the  claimant  did  not 
conform  to  the  requirements  of  the  board  of  public  credit,  and  that 
not  having  sustained  his  case  before  that  body  he  may  be  considered 
as  having  al)andoned  it.  Such  technical  requirements  as  may  have 
been  held  necesstiry  by  this  board  do  not  in  anywise  bai*  the  claimant 
from  proceeding  before  this  tribunal,  which  has  been  constituted  with 
the  object  of  examining  and  deciding  all  claims  owned  by  citizens  of 
the  United  States  which  have  not  been  settled  b}^  diplomatic  agree- 
ment or  ])y  arbitration.  By  virtue  of  the  protocol  entered  into 
betAveen  the  Government  of  the  United  States  and  the  Government  of 
Venezuela  this  claimant  has  a  perfect  right  to  come  before  this  Com- 
mission for  an  adjudication  of  his  claim. 

We  submit  that  Venezuela,  having  had  the  opportunity  of  appear- 
ing before  the  board  of  public  credit  and  disproving  the  claim  in  whole 
or  in  part,  and  not  having  done  so,  the  claim  can  be  regarded  as 
having  been  proved. 

The  evidence  taken  before  the  court  of  first  instance  of  Puerto 
Cabello  in  this  matter  sutficiently  establishes  the  loss  of  the  property 
of  the  claimant,  and  an  award  should  be  made  for  the  full  amount 
claimed,  with  interest  from  the  date  of  presentation  of  the  claim  to 
the  Venezuelan  Government. 

Kespectfull}^  submitted. 

Robert  C.  Morris, 
Agent  of  tlie  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  ~ 

of  William  H.  Volkmar,  claimant,  -kt     go 

V.  r 

The  Republic  of  Venezuela. 

DECISION  AND  AWARD. 

Opinion  by  Bainbridge,  Commissioner. 
The  Comijiission  disallows  the  claim. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  on  behalf  1 

of  William  H.  Volkmar,  claimant,        .      I  -^^   gg 

V. 

The  Republic  of  Venezuela. 

Bainbridge,  Commissioner. 

The  claimant  is  a  native  citizen  of  the  United  States,  residing  in  the 
city  of  Puerto  Cabello,  Venezuela.  In  the  year  1892  he  was  the  sole 
owner  of  the  electric-light  plant  of  that  city.     On  the  22d,  23d,  and 


KEPORT  OF  ROBERT  C.  MORRIS.  539 

2-ith  of  August,  18i>2,  the  forces  of  General  Crespo,  who  was  engaged 
hi  a  rcvokition,  ultimately  successful,  against  the  then  existing  govern- 
ment, attacked  the  cit,v  of  Puerto  Cabello,  and  during  the  engagement 
the  power  house,  lines,  lamps,  and  machinery  of  the  claimant  suft'ered 
damage  amounting,  as  claimed,  to  the  sum  of  84,180  bolivars,  for 
which  sum,  with  interest,  an  award  is  asked. 

The  evidence  presented  in  support  of  this  claim  is  amply  sufficient 
to  prove  the  fact  and  nature  of  clainrant's  loss.  15ut  it  fails  to  estab- 
lish any  liability  on  the  part  of  the  Government  of  Venezuela  there- 
for. It  is  perfectly  clear  that  the  losses  complained  of  were  the  result 
of  military  operations  in  time  of  flagrant  war,  and  for  such  losses 
there  is,  unfortunately,  by  established  rules  of  international  law,  no 
redress.  Such  losses  are  designated  by  Vattel  as  ''misfortunes  which 
chance  deals  out  to  the  proprietors  on  whom  they  happen  to  fall,''  and 
he  says  that  "no  action  lies  against  the  state  for  misfortunes  of  this 
nature,  for  losses  which  she  has  occasioned,  not  ^yillfully,  but  through 
necessity  and  by  mere  accident  in  the  exertion  of  her  rights." 

As  a  principle  of  international  law,  the  view  that  a  foreigner  domiciled  in  the 
territory  of  a  belligerent  can  rot  expect  exemption  from  the  operations  of  a  hostile 
force  is  amply  sustained  l)y  the  precedents  you  cite,  and  many  others.  Great  Britain 
admitted  the  doctrine  as' against  her  own  subjects  residing  in  France  during  the 
Franco-Prussian  war;  and  we,  too,  have  asserted  it  successfully  against  similar 
claims  of  foreigners  residing  in  the  Southern  States  during  the  war  of  secession. 
(Mr.  Evarts,  Secretary  of  State,  to  Mr.  Hoffman  July  18,  1879,  Wharton's  Int.  Law. 
Dig.,  sec.  224.) 

"The  property  of  alien  residents,"  says  Mr.  Frelinghuysen,  Secre- 
tary of  State,  'Mike  that  of  natives  of  the  country,  when  'in  the 
track  of  war,'  is  subject  to  wars  casualties."     (Wharton  Int.  Law. 

Dig.,  sec.  224.)  .  .,.,,. 

The  rule  that  neutral  property  in  belligerent  territory  is  liable  to 
the  fortunes  of  war  equally  with  that  of  subjects  of  the  state  applies 
in  the  case  of  civil  as  well  as  international  war.  In  Cleworth's  case, 
decided  by  the  American  and  British  Claims  Commission  of  1871,  a 
claim  was"  made  for  the  value  of  a  home  destroyed  in  Vicksburg  by 
shells  thrown  into  the  city  by  the  United  States  forces  during  the 
bombardment.  The  conmiissioners  said,  "The  United  States  can  not 
be  held  lia))le  for  anv  injury  caused  by  the  shells  thrown  in  the  attacks 
upon  Vicksburg."  And  the  same  principle  was  applied  in  the  case  of 
James  Tongue  v.  The  United  States  to  a  claim  for  property  destroyed 
by  the  bombardment  of  Fredericksl)urg  on  the  11th,  12th,  and  13th 
days  of  December,  1802.     (Moore  Int.  Arb.,  3675.) 

In  view  of  the  foregoing  considerations  the  claim  must  be  disallowed. 


540  KP:P0KT    of    KOhEKT    C.    MORRIS. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

AWARD. 


The  United  States  of  America  on  behalf 

of  William  11.  Volkmar,  claimant, 

/\ 

The  Republic  of  Venezuela. 


No.  52. 


The  above-entitled  claim  is  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  tlie  iMvt  of  the  United  States  of  America. 

Carlos  F.  Guisanti, 
Commissioner  on  the  pai't  of  Venezuela. 
Attest  to  award. 

Harry  Barge,  President. 
Attest. 

Eduaro  Calcano  Sanavria, 

Secretary  on  the  pa7't  of  Veyiezuela. 

Rudolf  Dolge, 

Secretary  on  the  part  of  the  United  States  of  America. 

Delivered  October  31,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 
of  Flannagan,  Bradley,  Clark  &  Co. ,  claimants,    1  ^^   gg 

The   Republic  of  Venezuela.  J 


This  claim  was  presented  to  the  Commission  on  the  memorial  of  the 
claimants  and  the  pleadings  as  presented  to  the  former  United  States 
9nd  Venezuelan  Claims  Commissions.  The  agent  of  the  United  States 
could  not  locate  any  of  the  claimants  or  their  representatives,  and  he 
was  unable  to  obtain  any  additional  information.  A  brief  was  tiled  by 
the  agent  of  Venezuela  in  answer,  and  a  brief  was  filed  by  the  agent 
of  the  United  States  in  replication. 

[Translation.] 

Flanagan,  Bradley,  Clark  &  Co.  1 

V.  \  Claim  No.  58. 

Venezuela.  j 

ANSWER. 

Honorahle  Memhers  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  United  States  of  Venezuela,  has  studied 
the  claim  presented  by  the  American  citizens  Flanagan,  Bradley,  Clark 
&  Co.,  and  very  respectfully  sets  forth  before  you: 


REPORT  OF  ROBERT  C.  MORRIS.  541 

This  claim,  as  it  has  been  presented  to  this  honorable  tribunal,  was 
submitted  to  the  mixed  commission  of  1890,  whose  members  disallowed 
it,  deeming  it  unfounded,  as  is  shown  by  the  opinions  of  the  respective 
commissioners;  and  it  is  therefore  a  matter  that  has  come  to  have  the 
force  of  res  judicata. 

It  can  not  be  conceived  what  motives  can  be  adduced  at  this  time  for 
reviving  the  claim,  since  the  expression  "without  prejudice,"  used  in 
the  judgment  alluded  to,  must  necessaril}^  be  understood  in  the  sense 
that  it  ma}^  be  resubmitted  before  local  tribunals,  but  on  no  account 
before  mixed  commissions  similar  or  analagous  to  the  one  which  deter- 
mined it.  The  undersigned  would  call  attention  anew  to  all  the  rea- 
sons upon  which  the  decision  of  the  commission  of  1890  was  based, 
and  which  are  shown  in  the  work  containing  the  findings  of  that  tribu- 
nal, edited  ])3'the  Government  of  the  United  States,  in  the  same  year, 
at  pages  1:25  to  1:56,  and  finally  invokes  the  force  of  res  judicata  in 
order  that  the  claim  may  be  disallowed. 

Caracas,  August  31,  i903. 

F.  Arroyo  Farejo. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 

The  United  States  of  America  on  behalf  1 
of  Flannagan,  Bradley,  Clark  &  Co. ,  claimants,  |  ^^   gg 
"v.  I 

The  Republic  of  Venezuela.  I 

REPLICATION  ON  BEHALF  OF  THE  UNITED  STATES., 

In  the  answer  of  Venezuela,  in  the  above-entitled  matter,  it  is  con- 
tended that,  because  of  the  dismissal  of  this  claim  before  the  United 
States  and  Venezuelan  Claims  Commission  which  sat  at  Washington  in 
1890,  without  prejudice  to  its  prosecution  elsewhere,  the  matter  has 
come  to  have  the  force  of  res  judicata. 

In  reply  to  this  contention  we  submit  that  the  dismissal  of  this  claim 
})y  the  commission  of  1890  was  for  want  of  jurisdiction  only  and  is  not 
a'bar  to  a  final  adjudication  of  the  claim.  The  contention  of  Vene- 
zuela that  in  dismissing  this  claim  the  conmiissioners  must  nccessaiily 
have  determined  the  merits  of  the  case,  and  that  the  dismissal  '^  with- 
out prejudice"  must  be  understood  in  the  sense  that  it  should  be  sub- 
mitted to  the  local  tribunals  and  on  no  account  ])efoi-e  mixed  commis- 
sions similar  or  analogous  to  the  one  which  dismissed  it,  are  proposi- 
tions too  manifestily  unreasonable  to  need  further  discussion.  The 
pi-inciple  is  recognized  by  every  code  of  nnmicipal  law  and  is  basic  to 
international  or  ]»ubiic  hiw  as  well,  that,  in  ovdvv  to  constitute  a  bar  or 
an  adjudication  of  the  claim  theic  must  have  been  a  In^aring  und 
decision  upon  the  merits,  and  that  a  dismissal  for  want  of  jurisdiction— 
which  is  for  want  of  i)o\ver  to  hear  or  determine  a  claim — necessarily 
meau.^  that  the  commission  did  not  Ix'ar  or  decide  the  merits  of  the 

case. 

The  powers  of  the  ])resent  ('onunission  are,  moreover,  expressly 
extended  by  the  protocol  to  include  all  claims  owned  by  citizens  of  the 
United  States.     Upon  this  power  there  is  no  limitation  or  restriction 


542  REPORT  OF  ROBERT  C.  MORRIS. 

whatsoever.  If  a  claim  exists  in  favor  of  a  citizen  of  the  United 
States,  this  Commission  has  the  power  to  consider  and  determine  it, 
and  hence  necessarily  to  consider  and  determine  whether  there  is  or  is 
not  a  valid  claim. 

There  can,  therefore,  he  no  good  objection  to  interpose  to  the  trial 
and  determination  of  this  claim  by  the  present  Commission. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 


No.  53. 


The   United    States  of  America  on  behalf    "1, 
of  Flanagan,  Bradley,  Clark  &  Co.,  claimants, 

The  Republic  of  Venezuela. 

decision. 

The  Commission  disallows  the  claim. 

The   United   States  and  Venezuelan   Claims  Commission,  sitting   at 

Caracas,  Venezuela. 


The   United   States    of   America    on    behalf 
of  Flanagan,  Bradley,  Clark  &  Co.,  claimants, 

V. 

The  Republic  of  Venezuela. 


y  No.  53. 


By  the  Commission: 

This  claim  was  submitted  to  the  United  States  and  Venezuelan  Claims 
Commission  organized  under  the  convention  of  December  5,  1885,  in 
whose  report  (pp.  425-456)  an  able  and  exhaustive  discussion  of  the 
facts  and  the  law  appertaining  to  the  case  will  be  found.  The  com- 
missioners were  practically  unanimous  that  the  claim  should  be  disal- 
lowed, although  it  would  appear  that  it  was  finally  "dismissed  without 
prejudice"  on  the  ground  that  certain  documents  called  for  had  not 
been  produced. 

Referring  to  the  claim,  Mr.  Commissioner  Little  says: 

I  see  in  the  papers  here  no  sufficient  l)asis  for  the  principal  claim  of  Flanagan, 
Bradley,  Clark  &  Co.  They  complain  that  Venezuela  conscripted  the  laborers,  citi- 
zens of  that  country,  at  work  on  the  railroad,  and  took  their  implements  for  military 
purposes,  thereby  stopping  the  improvement;  that  she  failed  to  pay  her  stock  sub- 
scription at  maturity;  that  the  occupation  of  La  Guaira  ))y  the  rebels  subjected  them 
to  heavy  demurrage;  and  that  because  of  these  things  they  were  compelled  to  abandon 
the  railroad  enterprise  and  sell  their  interest  therein  at  a  sacrifice.  Venezuela  was 
then  in  the  throes  of  civil  war.  Her  right  of  conscription  and  appropriation  for 
military  purposes  were  fundamental.  All  contracts  and  enterprises  were  subject  to 
it.  The  depleted  treasury  and  failure  to  meet  lier  obligations  to  the  railroad  com- 
pany mu.st  be  looked  upon  as  a  consequence.  Individual  indirect  losses  always  inev- 
itaVdy  result  from  such  a  situation,  yet  they  are  without  remedy.  This  claim  in  its 
ultimate  analysis,  in  so  faras  it  pertains  to  indirect  damages,  seems  to  be  of  that  char- 
acter— one  occasioned  by  the  accidents  of  war  and  for  which  governments  can  not  be 
held  liable.  In  so  far  as  it  relates  to  tools,  implements,  and  other  property  of  the 
firm  appropriated  by  Venezuela,  there  would  be  a  remedy.     But  there  is  no  specific 


REPORT  OF  ROBERT  C.  MORRIS.  543 

allegation  of  damage  in  this  regard,  and  no  evidence  showing  the  character  or  value 
of  the  articles  taken. 

The  present  Commission  is  entireh'  in  accord  with  this  view. 
The  claim  is  hereby  disallowed. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  United  States  of  America  ox  behalf  1 
of  Flanagan,  Bradley,  Clark  &  Co. ,  claimants,      (  ^r     go 
V.  I 

The  Republic  of  Venezuela. 

DECISION. 

The  above-entitled  claim  is  hereby  disallowed. 

William  E.  Bainbridge, 

Commissioner  on  the  part  of  the  United  States  of  America. 

J.  DE  J.  Paul, 
Com/missioner  on  the  jjart  of  Venezuela. 

Attest  to  decision: 

Harry  Barge,  President. 

Attest: 

J.  Padrox-Uztariz, 

Secretary  on  thej)<^(-rt  of  Venezuela. 

Rudolf  Dolge, 

Secretary  on  the  2)art  of  the  United  States  of  Amei'ica. 

Delivered  September  18,  1903. 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary IT,  1903,  between  the  United  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  on  behalf 
of  Elias  A.  de  Lima,  Elias  S.  A.  de  Lima,  and 
Edward  de  Lima,  partners  as  D.  A.  de  Lima 
&  Co.,  claimants, 

V. 

The  Republic  of  Venezuela. 


-No.  o-l. 


BRIEF  ON  BEHALF  OF  THE   UNITED  STATES. 

The  United  States  ])re.sents  in  this  case  the  claim  of  D.  A.  de  Lima 
&  Co.  for  damages  in  the  sum  of  ^70,000,  with  interest,  at  the  rate  of 
6  per  cent  per  aniunu  from  the  1st  day  of  August,  1901,  arising  out 
of  the  destruction  of  the  property  of  Quiterio  Henri((ues,  a  citizen  of 
the  Republic  of  Venezuela,  resident  in  the  city  of  Coro,  who  had  given 
a  mortgage  of  his  real  and  personal  property  to  said  claimants  to 
secure  his  indebtedness  to  them. 


544  REPORT    OF   ROBERT    C.  MORRIS. 

STATEMENT   OF    FACTS. 

During-  the  years  1901,  iW'2,  unci  1U08  Quiterio  llenriques  was 
indebtecfto  the  claimants  in  the  sum  of  $70,000  United  States  gold, 
and  as  security  for  the  payment  of  this  indebtedness  in  or  about  the 
month  of  August,  1901,  llenriques  executed  and  delivered  to  the 
claimants  a  mortgage  for  that  amount  covering  all  of  his  real  and  per- 
sonal property,  which  consisted  of  houses  in  the  city  of  Coro,  haciendas 
at  various  places  in  the  Rci)ublic  of  Venezuela,  together  with  personal 
propert  V.  such  as  farm  animals,  agricultural  implements  and  machinery, 
growinn-  crops  and  goods,  wares  and  merchandise  stored  in  warehouses, 
which  mortgage  was  conditioned  upo.n  tlie  pajauent  of  his  indebted- 
ness to  the  claimants.  This  mortgage  was  duly  registered  in  the  office 
of  the  proper  official  in  the  cit}'  of  Coro. 

In  the  month  of  June,  1903",  the  armed  forces  of  the  Government, 
numbering  four  or  five  thousand  men,  in  pursuit  of  revolutionar}'  forces, 
encamped  upon  the  hacienda  of  Hueques,  which  was  one  of  the  most 
important  pieces  of  property  upon  which  the  claimants  relied  for  their 
security.  The  Government  forces  destroyed  or  drove  away  all  of  the 
beasts  of  burden  and  turned  loose  upon  the  plantation  the  saddle  horses 
arid  mules  of  the  revolutionary  forces,  injuring  the  growing  crops.  In 
addition,  the  forces  of  the  Government  destroyed  all  of  the  sugar  cane, 
corn,  and  other  growing  crops,  and  the  machinery  used  for  crushing 
sugar  cane,  as  well  as  a  large  number  of  agricultural  implements,  and 
confiscated  a  large  and  valuable  stock  of  goods,  wares,  merchandise, 
and  bags  of  cofiee  stored  in  warehouses.  In  addition  to  the  destruction 
of  property,  the  governmental  forces  compelled  Henriques  to  make  a 
forced  loan  to  the  Government  of  $5,000.  The  total  value  of  the  prop- 
erty destroyed  or  confiscated  was  §80,000. 

Neither  Quiterio  Henriques  nor  the  claimants  herein  were  ever 
engaged  in  rebellion  against  the  Republic  of  Venezuela,  nor  did  they 
adhere  to  the  revolutionists  nor  ever  give  them  any  aid  or  support. 

Because  of  the  acts  of  the  forces  of  the  Government,  the  claimants 
have  been  deprived  of  the  security  for  the  payment  of  their  mortgage, 
with  the  proceeds  of  which  they  were  to  have  the  indebtedness  of  Hen- 
riques paid. 

As  appears  by  the  affidavit  of  Elias  A.  de  Lima,  here  submitted  in 
evidence,  the  claimants  had  no  information  of  the  acts  of  the  Govern- 
ment of  Venezuela,  complained  of,  until  the  month  of  July,  1903,  which 
accounts  for  the  lateness  of  the  presentation  of  this  claim. 

II. 

The  Government  of  Venezuela  is  responsible  for  the  acts  of  its  forces  in 
impairing  the  security  upon  lohich  the  claimants  depended  for  the  pay- 
ment of  the  indebtedness  to  them. 

The  acts  complained  of  were  done  by  the  Government  troops  of 
Venezuela,  under  the  direct  authority  and  supervision  of  their  officers, 
and  there  can  be  no  question  as  to  the  liability  of  the  Government  in 
such  case.  The  rule  of  international  law  in  this  respect  is  laid  down  in 
Moore's  International  Arbitrations,  Volume  HI,  pages  2952  and  2953, 
and  cases  collected  in  Volume  IV,  pages  3714  et  seq. 


REPORT  OF  ROBERT  C.  MORRIS.  545 

If  the  property  taken  was  for  the  use  and  support  of  the  Government 
troops,  under  the  authorities  there  can  be  no  question  as  to  the  liability 
of  the  Government  to  render  compensation  for  the  value  of  the  prop- 
erty so  taken.  The  same  is  true  as  to  so  much  of  the  property  as  may 
be  said  to  have  been  destroved  and  not  taken  for  the  use  of  the  troops. 
See  the  rule  laid  down  in  Shrigley's  case,  Moore's  International  Arbi- 
trations, Volume  IV,  pages  3711  and  3712. 

III. 

An  avjard  should  he  inade  for  thefxdl  amount  clairned. 

The  losses  complained  of  being  the  result  of  acts  for  which  the  Ven- 
ezuelan Government  is  responsible,  an  award  should  be  made  for  the 
full  amount. 
Respectfully  submitted. 

Robert  C.  Morris, 
Agent  of  the  United  States. 

Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 

ar}"  17,  1903,  between  the  United  States  of  America 

and  the  Republic  of  Venezuela. 


The  United  States  of  America  ox  behalf] 
of  Elias  A.  de  Lima,  Elias  S.  A.  de  Lima,  and  j 
Edward  de  Lima,  partners,  as  D.  A.  de  Lima 
&  Co.,  claimants, 

V. 

The  Republic  of  Venezuela. 


No.  54. 


This  claim  was  presented  by  the  agent  of  the  United  States  with  the 
foregoing  brief  in  support,  on  September  1,  1903,  by  consent  of  the 
Commission  and  under  the  ruling  that  additional  depositions  then  being 
taken  by  the  representatives  of  the  claimants  at  Coro  should  be  tiled 
on  or  before  September  30,  1903,  and  that  the  right  of  the  agent  of 
Venezuela  to  file  an  answer  should  run  from  the  date  of  the  receipt  of 
such  depositions  by  the  Conmiission  (Min.,  p.  109). 

On  October  13,  1903,  this  claim  was  withdrawn  by  the  representa- 
tive of  the  claimants  through  the  United  States  legation  at  Caracas 
(Min.,  p.  141). 


Before  the  Mixed  Commission  organized  under  the  protocol  of  Febru- 
ary 17,  1903,  between  the  L^nited  States  of  America 
and  the  Republic  of  Venezuela. 


The  United  States  of  America  ox  behalf 
of  J.  B.  F.  r.  Monnot,  claimant, 

V. 

The  Republic  of  Venezuela. 


rNo. 


This  claim  was  presented  to  the  Commission  on  September  15,  1903, 
b}^  the  legation  of  the  United  States  at  Caracas. 

S.  Doc.  317,  58-2 35 


546  REPORT  OK  ROBERT  (\  MORRIS. 

The  Coinmissionor  on  the  part  of  Venozuehi  objected  to  the  tiling  of 
this  chiini.  Decision  was  reserved  until  the  next  session  of  the  Com- 
mission to  enable  the  ag-ent  of  Venezuela  to  tile  his  objections  (Min. , 

At  the  next  session  of  the  Conmiission  the  Conmiissioners  heard  the 
objections  of  the  agent  of  Venezuela  and  disagreed  on  the  question  of 
permitting  the  claim  to  be  tiled.  The  matter  Avas  then  referred  to  the 
umpire,  who  allowed  the  claim  to  be  tiled  (Min.,  p.  123). 


Ilanorahle  Memhe^'s  of  the  Venezuelan- American  Mixed  Commission: 

The  undersigned,  agent  of  the  Government  of  Venezuela,  in  refer- 
ence to  the  claim  of  Mr.  J.  1^,  Monnot.  presented  at  the  last  session, 
respectfully  shows  to  the  tribunal: 

Whereas  Article  II  of  the  protocol  signed  at  Washington  authorized 
the  honorable  arbitrators  to  concede  terms  of  grace  in  the  presentation 
of  claims  as  decided  at  the  session  of  July  1,  and  that  the  honorable 
agent  of  the  Government  of  the  United  States  petitioned  and  was 
granted  by  the  court  an  adjournment  with  the  object  of  completing 
and  presenting  deiinitel}"  the  claim  which  was  then  left  inactive,  and 
that  said  adjournment  terminated  the  21st  of  July  last  without  the 
presentation  above  referred  to  being  effected,  and  without  any  pre- 
sentation whatsoever  being  made  on  account  of  the  agent  of  the  United 
States,  for  this  reason  the  undersigned  judges  that  the  time  has  elapsed 
for  the  presentation  of  this  claim,  and  that  the  Commission  must 
refuse  it. 

The  excuse  set  forth  by  the  claimant  is  not  admitted,  being  a  ven- 
turesome pretext,  since  the  circumstance  of  the  State  of  Bolivar  being 
without  communication  by  reason  of  the  recent  political  events  was 
not  an  impediment  such  as  might  prevent  the  previous  claim  which 
has  representation  before  the  Commission,  as  is  shown  by  succeeding 
events  in  that  same  State. 

For  the  reasons  above  set  forth  the  Venezuelan  agent  respectfully 
opposes  the  admission  to  consideration  of  the  new  claim  presented. 

Caracas,  September  17,  1903. 

F.  Arroyo  Pare  jo. 

[Translation.] 

J.  B.  F.  P.  Monnot  ) 

7\  \  Claim  No.  5.5. 

Venezuela.        ) 

ANSWER. 

Honorahle  Memhers  of  the  Venezuelan  and  American  Commission: 

The  undersigned,  agent  of  the  Government  of  the  United  States  of 
Venezuela,  has  studied  the  claim  presented  by  the  American  citizen 
J.  B.  F.  P.  Monnot,  and  respectfully  informs  the  tribunal: 

The  claim  in  question  does  not  appear  to  have  other  foundation  than 
the  capricious  assertion  of  the  claimant,  who  pretends  that  the  Vene- 
zuelan Government  must  indemnify  him  for  the  poor  success  of  his 
business. 

From  the  documentation  exhibited  it  can  be  seen  that  the  Venezue- 
lan authorities  at  all  times  endeavored  to  enforce  the  rights  which  the 


EEPORT  OF  ROBERT  C.  MORRIS.  547 

claimant  alleged,  and  in  the  pleadings  no  proof  exists  of  any  formal  or 
concrete  act  on  the  part  of  the  authorities  which  maj'  have  injured  the 
interests  of  the  claimant.  Therefore  the  undersigned  can  not  enter 
into  a  discussion  of  a  claim  which  lacks  absolutely  all  foundation  of 
such. 

Besides,  Mr.  Monnot  was  only  a  lessee  of  the  Orinoco  Company, 
Limited,  and  if  any  resistance  existed  to  prevent  him  from  the  peace- 
ful enjoyment  of  his  rights,  he  should  have  addressed  himself  against 
said  company,  but  never  against  the  Venezuelan  Government  with 
whom  he  never  had  contracted. 

The  alleged  basis  upon  which  this  claim  is  founded  thus  being  dis- 
proved both  in  fact  and  in  law  the  claim  must  be  rejected. 

Caracas,  October  7,  1903. 

(Signed)  F.  Arroyo  Parejo. 

The  United  States  and  Venezuelan  Claims  Commission,  sitting  at 
Caracas,  Venezuela. 

The  Uxiteu  States  of  America  ox  behalf! 

of  J.  B.  F.  P.  Monnot,  claimant,  t.-      ^^ 

^.  ^^o.  55. 

The  Republic  of  Venezuela.  J 

DECISION. 

The  evidence  presented  in  support  of  the  above-entitled  claim  being- 
insufficient  to  establish  anv  liabilit}'  on  the  part  of  the  Republic  of 
Venezuela  for  the  losses  and  injuries  complained  of,  the  said  claim  is 
hereby  disallowed. 

Rudolf  Dolge, 
Commissioner  on  thej^aj^i  of  the  United  States  of  America. 

Carlos  F.  Grisaxti, 
Commissioner  on  the  j^art  of  Veiiezusla. 
Attest  to  decision: 

Harry  Barge,  President. 
Attest: 

Eduardo  Calcario  Sanavria, 

Secretary  on  the  part  of  Venezuela. 
Rudolf  Dolge, 

Seci^etary  on  the  part  of  the  United  States  of  Am  erica. 
Delivered  December  26,  1003. 


I^DEX 


A. 


"Absolute  equity"  in  protocol  requires  equitable  application  of  well-established 

principles  of  international  law 46 

Alliance  (schooner)  case.     [See  Smith,  Leonard  B.) 
American  Electric  and  ^Manufacturing  Company  case: 

Brief  on  behalf  of  United  States 128 

Answer 130 

Opinion  by  Paul 1^1 

Award 1"^^ 

American  Electric  and  Manufacturing  Company  case  (No.  2): 

Oral  presentation 511 

Answer '^H 

Replication ^1^ 

Opinion  by  Grisanti - •''1^ 

Opinion  by  Umpire §1" 

Decision "'I ' 

Ames  Foundries  case: 

Brief  on  behalf  of  United  States ''^'L 

Decision "^ 

Anderson  case: 

Brief  on  behalf  of  United  States 354 

Answer 356 

Opinion  by  Bainbridge 3o8 

Decision an  q- 

Antichresis,  discussed 90, 9o 

Army.     (See 'War.) 

Arro'yo-Parejo,  F.,  Venezuelan  agent " 

Address  by '^■^ 

Answers  bv— 

American  Electric  and  Manufacturing  Company  cases Lit),  511 

Anderson  case 3'^^ 

Bance  case 381 

Berrizbetia  case 3^^ 

Boulton,  Bliss  &  Dal lett  case I<j2 

Bullis  case 3/ '- 

Caracas  and  La  Guayra  Cable  Company  case -sol 

Crowther  case "^^^ 

De  Garmendia  case ^.i 

Dix  case ^ j 

Duke  case '3^^ 

Emery  case J  ,^ 

Flannagan,  Bradley,  Clark  &  Co.  case ■^■j<' 

Flutie  cases ]^^ 

Gage  case 3.^4 

Gencvese  case "'^i] 

Heny  case ^3 

Jarvis  case f^" 

Kuhnhardt  case Ym 

La  Guayra  Electric  Light  and  Power  Company  case Wl 

Lasry  case 

549 


550  INDEX. 

Arroyo-rarojo,  F.,  Venezuelan  agent — Continued. 

Answers  hv —  Page. 

Matchett  case 342 

Mereado  cases ."46,  521 

Monnot  ease 378,  546 

Mund y  case 504 

Orinoco  Steamship  Company  case 219 

Pares  case 448 

Phelpa  case 352 

Raymond  case 522 

Roberts  case 284 

Rndloff  case 416 

Scandella  case 349 

Smith,  Leonard  B.,  case 115 

Spader  case 324 

Stubbs  case 123 

Thomson-Houston  case 369 

Torrey  case 329 

Turini  cases 169,  185 

TurnbuU  case 456 

Supplement  to  answer 459 

Underhill  case _ 157 

Upton  cases 385,  444 

Volkmar  case 536 

Woodruff  case 3li 

Rejoinder — 

Heney  case 87 

Assignment,  without  notice  to  Government  and  against  stiisulation  in  conces- 
sion, void 276 

Awards.     {See  Decisions  and  awards.) 

B. 
Bainbridge,  William  E. : 

American  Commissioner 5 

Opinions — 

Anderson  case 358 

Bullis  case 375 

Caracas  and  La  Guayra  Cable  Company  case 363 

Crowther  case 443 

De  Garmendia  case 64 

Dix  case 56 

Emery  case 126 

Flutie  cases 146 

Gage  case 335 

Heny  case 58 

Jarvis  case 301 

Kuhnhardt  case 195 

La  Guayra  Electric  Light  and  Power  Company  case 406 

Lasry  case 135 

Manoa  Company  (Limited)  case.     (*See  TurnbuU  case. ) 

Monnot  case 379 

Orinoco  Company  (Limited)  case.     {See  Turnbull  case.) 

Orinoco  Steamship  case 256 

Raymond  case 527 

Roberts  case 286 

Rudloff  case 421, 433 

Smith  case 117 

Spader  case 325 

Turini  case 172 

Turnbull  case 460 

Underhill  case 159 

Upton  case 387 

Volkmar  case 538 

Woodruff  case 313 

Bance  case: 

Brief  on  behalf  of  United  States 381 

Answer 381 


INDEX.  551 

Bance  case — Continued.  Vage. 

Replication 382 

Opinion  by  Paul 383 

Decision 384 

Bankruptcy : 

Individual  creditor  of  bankrupt  not  received  as  claimant  for  injury  to 

bankrupt's  property 383 

Receiver  in,  only  acts  as  administrator,  and  individual  credits  not  private 

property  of  creditor 383 

Barge,  Charles  A.  N. : 
Opinions — 

Umpire 5 

American  Electric  and  Manufacturing  Company  case 517 

Gage  case 337 

Heny  case 97 

Manoa  Company  (Limited)  case.     {See  Turnbull  case.) 
Orinoco  Company  (Limited)  case.     {See  Turnbull  case.) 

Orinoco  Steamship  Company  case 266 

Rudloff  case 431 

Turini  case 181 

Turnbull  case 500 

Underbill  case - 162,164 

Woodruff  case ^ 321 

Berrizbetia  case: 

Oral  presentation 390 

Answer 390 

Replication , - 391 

Claim  withdrawn - 392 

Blockade  (.see  Closure  of  ports): 

Closure  of  ports  by  Government  in  rebel  territory  does  not  constitute, 

unless  rebels  are  recognized  as  belligerents 278 

Bombardment: 

Claim  for,  disallowed  as  for  legitimate  consequence  of  war 132 

Bonds: 

For  services  in  supporting  unsuccessful  revolutions  can  not  be  enforced...  306 
Boulton,  Bliss  &  Dallett  case: 

Brief  on  behalf  of  United  States 101 

Answer 102 

Replication 103 

Opinion  by  Paul 150 

Award 109 

Bowen,  Hon.  Herbert  W. ,  mentioned 32 

Bullis  case: 

Oral  presentation 372 

Answer 372 

Replication 373 

Opinion  by  Bainbridge 375 

Decision - 376 

Business  injury  {see  Injury:  No  damages  allowed  for,  as  result  ui  war 100 

C. 

Caracas  and  La  Guayra  Cable  Company  case: 

Brief  on  behalf  of  United  States 359 

Answer 3*^,' 

Opinion  by  Bainbridge 363 

Decision 368 

Citizenship: 

Citizens  of  claimant  country  are.  recognized  to  claim  interest  m  dissolved 

corporation  of  respondent  c<nintry 190 

Claims  must  be  of  tlxjse  who  were  citizens  at  time  of  origin  and  signing  of 

protocol,  unless  {•hanged  by  treaty -^0 

Civil  commotions.      {See  Revolutions.) 
Civil  war.     (.SVe  Government;  Revf)lution.) 

Claim.     (,SVv?  Citizenship;  Claimant;  Claims;  (-'oricession;  Contract;  Damages; 
Government;  Jurisiliction): 

Ef|uitable  demands  may  V)e  received  as Ot> 

Interest  allowed  on,  fnun  date  of  presentation ----       1-^1 

Disallowed  for  damages  for  want  of  towing  facilities  resultant  upon  (iov- 
ernment's  use  of  only  towboat 1-' 


552  INDEX. 

Claim— Continued.  P'l&e. 

Allowed   fi>r  })roperty  taken  by  Government  for  military  purposes  and 

damaged  in  its  jKissession 129 

Disallowed  ftn'  bombardment  as  necessary  consetiuence  of  legitimate  war.       132 

Disallowed  (or  failure  to  i)rove  suecession  in  interest 162 

Allowed  for  unlawful  detention  by  refusal  to  furnish  passport 167 

Allowed  for  as  to  work  done,  although  violated  by  botli  ))arties 183 

Destruction  of  neutral  property  by  soldiers  with  authorization  or  in  pres- 
ence of  negligent  officers  t-reates 191 

AlU>wed  for  wrongful  annulment  of  concession 193 

None  exists  for  refusing  right  to  navigate  waters  to  those  believed  by  Gov- 
ernment to  be  rebel  sympathizers 279 

Allowed  for  acts  of  violence  committed  by  troops  when  under  command 

of  officers 290 

Duly  presented,  not  barred  by  delay  in  settlement 289 

For  payment  of  bonds  for  services  rendered  in  unsuccessful  revolution  can 

not  be  enforced  against  Government 306 

Rights  unasserted  for  forty-three  years  can  hardly  be  called 326 

Allowed  for  back  payment  and  work  done  under  contractual  obligation..       400 
For  breach  of  contract  by  municipal  corporation  disallowed  against  Gov- 
ernment         410 

For  repayment  from  Government  for  rights  Government  could  not  con- 
cede and  whose  enjoyment  it  prevented  allowed  with  legal  interest  from 

time  of  payment 507 

May  be  made  for  breach  of  collateral  promise  in  international  tribimals, 

notwithstanding  contract  providing  for  submission  under,  to  local  courts.       518 

Breach  of  promise  to  do  any  legal  act  can  not  be  made  basis  of 518 

None  exists  for  neutral  property  accidentally  destroyed  in  war 539 

Claimant.     ((SVe  Citizenship;  Claim;  Claims): 

Stockholder  of  existing  corporation  can  be 190 

Claims,  schedule  of,  and  summary  of  proceedings: 
Alliance,  schooner.     (/S'ee  Smith,  Leonard  B.) 

American  and  Electric  Manufacturing  Company '. 11,  29 

Ames  Foundries 8 

Anderson,  Joseph,  jr 19 

Bance,  J.  B.,  receiver  for  Ernestro  Caprilles 21 

Berrizbetia,  Mauricio 22 

Bliss,  Ernest  C.     {See  Boulton,  Bliss  &  Dallett. ) 

Boulton,  Bliss  &  Dallett 10 

Boulton,  William  B.     {See  Boulton,  Bliss  &  Dallett.) 
Bradley.     {See  Flannagan,  Bradley,  Clark  &  Co.) 
Brion,  Admiral  Louis.     {See  Spader,  William  V.,  et  al.) 

Bullis,  Henry  C 20 

Caprilles,  Ernestro.     (^ee  Bance,  J.  B.,  receiver.) 

Carabelli,  Joseph.     {See  Turini  et  al. ) 

Clark.     {See  Flannagan,  Bradley,  Clark  &  Co.) 

Coro  and  La  Vela  Railway  Improvement  Company 8 

De  Garmendia,  Corinne  B 8 

DeLima,  D.  A.,  &  Co 31 

De  Lima,  Edward.     {See  De  Lima,  D.  A.,  &  Co. ) 
De  Lima,  Elias  S.  A.     (,SVe  De  Lima,  D.  A.,  &  Co.)- 

Del  Genevese,  Virgilio 22 

Dix,  Ford 7 

Duke,  Henry  T 23 

Emery,  J.  S.,&Co H 

Flannagan,  Bradley,  Clark  &  Co 30 

Flutie,  Elias  Assad 12 

Flutie,  Emelia  Alsous 12 

Gage,  George  E 17 

Gorham  Manufacturing  Company,  The.     {See  Turini  et  al. ) 

Growther,  George 24 

Heny,  Emerich ^ 

Jarvis,  Susanna  Maude  and  Rebecca  Josephine 16 

Johnson  &  Johnson.     {See  Bance,  J.  B.,  receiver.) 

Kuhnhardt&Co 14 


INDEX.  553 

Claims,  schedule  of,  and  summary  of  proceedings — Continued. 
Kuhnhardt,  Henrv  E.     {See  Kuhnhardt  &  Co.) 
Kulhke,  George  W.     {See  Kuhnhardt  &  Co. )  Page. 

La  Guayra  Cable  Company 20 

La  Guayra  Electric  Light  and  Power  Company 23 

Lasry,  Isaac  J H 

Manoa  Company,  The  (Limited ) - 26 

Mai-k  Gray,  schooner.     {See  Emerv,  J.  8.,  &  Co.) 

Matchett,  William  B ". 18 

Mercado,  Lorenzo -  - 18,  29 

Monnot,  J.  B.  F.  P 21 

Monnot,  J.  B.  F.  P.  (No.  2) 31 

Mueller,  Franz.     {See  Kuhnhardt  &  Co.) 

Mundy,  William  H 28 

Orinoco  Company,  The  (Limited) 27 

Orinoco  Steamship  Company 15 

Paez,  Catalina  V.,  and  Jose - " 

Parez,  Pedro  Miguel - - 25 

Ph el  ps,  W  i  11  iam  H 19 

Quirk,  William.     {See  Roberts,  Frances  Irene. ) 

Raymond,  Charles,  heirs  of 30 

Roberts,  Frances  Irene,  administratrix  of  estate  of  William  Quirk,  deceased.  15 

Rudloff,  Sofia  Ida  Wiskow  de,  and  Frederick  W 24 

Scandella,  F - 19 

Schimmell,  John.     (S'ce  Boulton,  Bliss,  &  Dallett.) 
Seabury  &  Johnson.     {See  Bance,  J.  B.,  receiver.) 

Smith,  Leonard  B 10 

Spader,  William  V.,  et  al.,  heirs  and  legatees  of  Admiral  Louis  Brion 17 

Stubbs,  A.  T l^ 

Thomson-Houston  International  Electric  Company 20 

Torrey,  Charles  W 1" 

Turini,  Giovanni,  administratrix  and  heirs  of,  the  Gorham  Manufacturing 

Company  and  Joseph  Carabelli 13 

Turini,  Margaret,  administratrix 14 

Tumbull,  George - 25 

Underbill,  George  Freeman,  and  Jennie  Laura  Underbill 12 

Upton,  George  W -  - 22 

Upton,  George  W.  (No.  2) 25 

Volkmar,  AV.  H 30 

Weeks,  Potter  &  Co.     {See  Bance,  J.  B.,  receiver.) 

Woodruff,  Henrv -  ^^ 

Claims  {see  Citizenship;  Claim;  Claimant;  Damages;  Jurisdiction;  Summary  of 
claims):  . 

Must  belong  to  those  who  Avere  citizens  of  claimant  country  at  time  ot 

origin  and  date  of  i)rotocol -  -  -  -  268 

For  use  by  Government  of  property  licld  under  assignment  void  as  against 

Government  are  enforceable -" 

Closure  of  porte  (see  Blockade): 

By  Government  during  revolt,  not  lilockade  unless  rebels  are  recognized 

"as  belligerents - -^'^ 

Concession  (.see  Contract): 

Damages  mav  be  awarded  for  wrongful  annnlinontof 1;^^* 

Providing  against  resort  to  international  tribunals  is  effective 2/5 

Of  exclusive  right  to  use,  for  foreign  commerce,  waterways  reserved  for 

coastwise  trade  does  not  prevent  opening  for  commerce 274 

No  sufficient  evidence  as  to  value  of,  claim  disallowed 44  / 

Contract:  .    . 

Award  made  under  implied : \^^* 

Damages  for  work  done  allrwcd,  altbougb  vioiatcil  by  both  parties l«.i 

Subsequent  to  furtbcr  and  illegal,  is  in  violation  of  law -  305 

Provision  that  (juestions  arising  under  shall  l)e  referred  to  local  courts  and 
never  made  subject  to  international  claim  is  binding,  and,  without 
showing  such  resort  and  delay  or  denial  of  justice,  can  not  be  considered 

by  International  Commission 31-o 

Commission  has  no  jurisdiction  to  compel  Gov(>rnment  to  acknowledge 

claimant's  performance  of '^^° 


554  INDEX. 

Onitrai't— Coutiimeti                                                                                .  ^'"^^*^- 
Claim  for  breach  of,  by  municipal  corporation  disallowed  against  Govern- 
ment   ." : -IIO 

Entered  into  by  minister  of  public  works  and  authorized  by  Chiet  Execu- 
tive is,  of  (Tovernment 439 

Party  to  a,  can  not  declare  it  void,  but  must  apply  to  courts  to  have  it  set 

aside :  -  -       ^^^ 

Providintr  that  questions  under  it  must  be  decided  by  local  courts,  remains 

existintr  until  declared  void  by  them -.-       506 

Second,  to  take  effect  when  lirst  became  void  is  valueless  until  first  is 

declared  inoperative  l)y  local  tribunals. 507 

Government  i>art v  to,  can  not  declare  it  void - 520 

Providing  for  a  settlement  by  local  courts  of  questions  under,  does  not 

prevent  claim  in  international  tribunal  on  collateral  promise 518 

Coro  and  La  Vela  Railway  Improvement  Company,  The,  case: 

Brief  on  behalf  of  the  United  States 68 

Opinion  bv  Paul 69 

Award  ..'. 70 

Corporation: 

Stockliolders  are  not  co-owners  of  property  of !»» 

Stockholders  have  no  claim  on  respondent  Government  during  its  existence       204 
Citizens  of  claimant  country,  stockholders  in  dissolved  corporation  can 

claim  equitable  share  of  assets 199 

Without  proof  of  diabilities  of  dissolved  corporations  no  equitable  claim 

can  be  sustained 199 

Right  of  creditors  and  stockholders  to  property  of,  not  destroyed  by  disso- 
lution or  liquidation 1"° 

Stockholders'  interests  on  dissolution  become  equitable  rights  to  propor- 
tionate shares  of  property 199 

Crowther  case: 

Brief  on  behalf  of  United  States 440 

Answer 442 

Opinion  by  Bainbridge 443 

Custom-house:  Registry;  prima  facie  evidence  only  as  to  ownership 119 

D. 

Government  responsible  for  proximate  and  natural  consequences  of  its 

acts 58 

For  destruccion  of  property  for  public  benefit 92 

Measure  of,  is  loss  of  benefit  to  claimant 173 

Allowed  against  wrongdoer  on  unrecorded  instruments 85 

Not  allowed  for  interruption  of  business  where  war  exists 100 

Will  be  allowed  for  unlawful  detention  of  weather-bound  vessels 120 

Disallowed,  as  result  of  bombardment 132 

Government  responsible  for  property  seized  for  military  purposes  and 

damaged  in  its  possession 129 

Allowed  for  unlawful  detention  by  refusal  to  furnish  passport 16/ 

Allowed  contractor's  successors  "in  interest,  for  work  done  where  both 

parties  violated  contract - 1^3 

Allowed  for  work  done  although  contract  violated  by  both  parties 183 

Measure  of,  for  performance  of  contract  if  prevented,  is  difference  between 

contract  price  and  price  of  completion,  less  sums  paid 187 

Awarded  for  wrongful  annulment  of  concession 199 

In  addition  to  actual,  allowed  for  losses  necessarily  contemplated 290 

Allowed  for  personal  inconvenience  during  period  of  arrest 331,  338 

Punitive,  not  allowed  for  mistaken  arrest  where  apology  promptly  follows.  331 

Allowed  for  insults  and  threatened  illtreatment  under  lawful  arrest 338 

Government  responsible  for  wrongful  seizure  of  property  without  reason- 
able inquiry - •'^^ 

Consequential,  discussed 436 

Contract  providing  for  decision  of  questions  under  it  under  laws  of  Repub- 
lic and  by  local  tribunals,  application  to  local  courts  must  be  made 

before,  can  be  obtained ;  -  -  '''^^ 

None  lie  for  breach  of  second  contract  improperly  signed  before  first  witli 

other  parties  was  declared  void 507 


INDEX.  555 

Damages — Continued.  Page. 
For  breach  of  collateral  promise  entertained,  notwithstanding  clause  in 
contract  providing  for  settlement  of  controversies  under  it  by  local 

courts 518 

Allowed  to  person  who,  under  permit  from  Government,  makes  expendi- 
ture if  permit  be  revoked  without  sufficient  reason 267 

Can  not  be  claimed  by  foreigner  against  Government  for  unavoidable  acts 

of  war 539 

Will  be  allowed  for  unwarranted  acts  of  officials  which  have  not  been 

punished 290 

Decisions  and  awards: 

Alliance  (schooner)  case.     (See  Smith,  Leonard  B. ) 

American  Electric  and  Manufacturing  Company  case 133 

American  Electric  and  Manufacturing  Company  case.  No.  2 517 

Ames  Foundries  case "6 

Anderson  case 359 

Boulton,  Bliss  &  Dal'lett  case 109 

Bullis  case 376 

Caracas  and  La  Guayra  Cable  Company  case ~ 368 

Coro  and  La  Vela  Railway  Improvement  Company  case 70 

Crowther  case 444 

De  Garmendia  case 68 

Dix  case 59 

Duke  case "^15 

Emery,  J.  S.  &  Co.  case 128 

Flannagan,  Bradley,  Clark  &  Co.  case 543 

Flutie  cases 153 

Gage  case 339 

Genevese  case ^01 

Heny  case 101 

Jarvis  case ^01 

Kuhnhardt  case 205 

La  Guayra  Cable  Company  case.     {See  Caracas  and  La  Guayra  Cable 
Company.) 

La  Guayra  Electric  Light  and  Power  Company  case 41U 

Lasry,  Isaac  J. ,  case 137 

Manoa  Company  case.     {See  Turnbull  case. ) 
Mark  Gray  (schooner)  case.     {See  Emery  case.) 

Matchett  case 3;*^ 

Monnot  case  (No.  1 ) 3HU 

Monnotcase  (No.  2) 5-f7 

Mundy  case - -^^ 

Orinoco  Company  case.     ( .See  Turnbull  case. ) 

Orinoco  Steamship  Company  case -^0 

Paez  case ,^i 

Pares  case ^l^ 

Phelps  case 'l?St 

Raymond  case '^' ^ 

Roberts  case "' " 

Rudloff  case ■-  -  • f;^ 

Scandella  case '^''^ 

Smith,  Leonard  B.,  case t^^ 

Spader  case ^^'q 

Stubbs  case ^f  1, 

Thomson-Houston  International  Electric  Company  case ;^' - 

Torrey  case '^?.\ 

Turini  case  ( No.  1 ) tZt 

Turinicase  (No.  2) '^^ 

TurnbuU  case f'^ 

Underbill  case .- '  |I 

Upton  case \',^ 

Upton  case  ( No.  2) ;J" 

Volkmar  case I^.-, , 

Woodruff  case - •''■'■* 

De  Garmendia  case:  „^ 

Brief  on  behalf  of  United  States ^" 

Answer 


55(i  INDEX. 

De  (.iarmendia  case — Continued.  v&ge. 

Opinion  by  Bainbridge 64 

Award 68 

De  T.ima  case  (Elias  de  Lima,  Elias  S.  A.  de  J>inia,  and  Edward  de  Lima, 
claimants): 

Brief  on  behalf  of  United  States 543 

Witlidrawn - 545 

Denial  of  justiee: 

Without,  international  tribunal  can  not  consider  contract  providing  for 

reference  to  local  courts 325 

Ordinarily  necessary  in  cases  of  breach  of  private  contract  to  give  Com- 
mission jurisdiction 437 

Dix  case: 

Brief  on  behalf  of  United  States - 45 

Answer 51 

Keplication 54 

Opinion  bv  Bainbridge 56 

Award..-'. 59 

Dolge,  Rudolf,  American  secretary 6 

Domicile: 

Defined 151 

Duke  case: 

Oral  presentation 410 

Answer -  411 

Replication 411 

Opinion  by  Paul 414 

Decision 415 

E. 

Emery,  J.  S.,  &  Co.  case: 

Brief  on  behalf  of  United  States 124 

Answer 125 

Replication 126 

Opinion  by  Bainbridge 126 

Decision 128 

Equitv: 

Equitable  interest  of  claimant  in  assets  of  dissolved  corporation  recognized .  204 
Contract  provisions  requiring  submission  of  disputes  to  local  courts  being 

inequitable  under  the  circumstances,  jurisdiction  is  taken _. . .  432 

Application  of  rule  of  absolute,  discussed  and  jurisdiction  taken,  notwith- 
standing provision  of  contract  for  submission  of  disputes  to  local  courts.  432 
Evidence: 

Custom-house  registry  prima  facie  evidence  only  as  to  ownership  of  vessels.  119 

Strict  rules  of  common  law  not  followed 46,  78 

Unsworn  statement,  informal  declaration,  etc. ,  receivable 46,  78 

Certificate  of  naturalization  prima  facie  only 149 

Claim  disallowed  for  failure  to  prove  succession  in  interest 162 

Decision  of  foreign  government  as  to  de  facto  character  of  another  govern- 
ment has  great  weight  as  to  fact,  and  is  conclusive  upon  its  own  citizens.  306 

F. 

Flannagan,  Bradley,  Clark  &  Co.  case: 

Presentation 540 

Answer 540 

Replication 541 

Opinion  by  Commission 542 

Decision 543 

Flutie,  Elias  Assad,  case: 

Brief  on  behalf  of  United  States 1  ^" 

{See  Flutie  cases.) 

Flutie,  Emilia  Alsous,  case: 

Brief  on  behalf  of  United  States 140 

{See  Flutie  cases.) 

Flutie  cases: 

Briefs  on  behalf  of  United  States 137,140 

Answer 1"12 


INDEX.  557 

Flutie  cases — Continued.  p^&^- 

Replication 143 

Opinion  by  Bain  bridge 146 

Decision 153 

G. 

Gage  case: 

Brief  on  behalf  of  United  States 332 

Answer 334 

Opinion  by  Bainbridge - 335 

Opinion  by  Paul 336 

Opinion  by  umpire - 337 

Award 339 

Genevese  case: 

Brief  on  behalf  of  United  States 393 

Answer - 395 

Opinion  by  Paul - 397 

Award 401 

Government  {see  Claim;  Claimant;  Claims;  Concession;  Contract;   Damages; 
Revolution): 

Acta  of  successful  revolution  regarded  as  acts  of  de  facto > 57,  79, 91 

Responsibility  of,  for  taking  of  neutral  property  by  successful  revolution.  57,  79,  91 

Responsible  for  approximate  and  natural  consequences  of  its  acts 57,  79,  91 

Damages  awarded  for  destruction  of  property  for  public  benefit  by 57 

Right  to  grant  towing  monopoly  recognized -  - ._  125, 127 

Responsible  for  property  seized  for  military  purposes  and  damaged  in  its 

possession 129 

Not  responsible  for  necessary  consequences  of  legitimate  act  of  war 79,  84 

Held  responsible  for  work  done  under  contract  afterwards  violated  by 

both  i)arties 167 

Want  of  notice  to,  when  it  is  provided  for  by  concession,  makes  assign- 
ment void 274 

Responsible  for  acts  of  violence  committed  by  troops  when  under  com- 
mand of  officers 139 

Not  responsible  for  bonds  issued  to  support  unsuccessful  revolutions 306 

Decision  of  foreign  government  as  to  existence  of  another  de  facto,  con- 
clusive upon  its  own  citizens 306 

Responsible  for  wrongful  seizure  of  property  without  reasonable  inquiry.  380 
Can  not  be  compelled  by  Commission  to  acknowledge  claimant's  perform- 
ance of  contract 388 

Contract  entered  into  by  minister  of  public  works  and  governor  of  Federal 

District  authorized  by  Chief  Executive  is  act  of 439 

Party  to  a  contract  can  not  declare  it  void 520 

Promise  by,  to  annul  existing  contract  providing  for  submission  under,  of 

questions  under  it  to  local  courts  is  illegal 518 

Grisanti,  Carlos  F. : 

Venezuelan  Commissioner 5 

Opinions — 

Manoa  Company  (Limited)  case.     {See  TurnbuU  case.) 

American  Electric  an<l  Manufacturing  Company  case 516 

Orinoco  ( Limited )  case.     (.SVe  TurnbuU  case.) 

Orinoco  Steamship  Company  case 258 

Raymond  case 532 

Tumbull  ca.se -^87 

II. 

Heny  case: 

Brief  on  behalf  of  United  States 77 

Answ(!r ^^ 

Replication °5 

Rejoinder ^' 

Opinion  hy  Bainbridge ^ 

Opinion  })y  Paiil ^- 

Opinion  bv  umpire °lj 

Award...- 101 


558  INDEX. 

I. 

Injuries.     (<See  Damages. ) 

Interest:  Taga. 

Charsoablr  only  from  date  of  demand  for  compensation  maless  delay 

explaini'd 59 

Allowed  on  claim  from  date  of  ]>r(.'sentation 121 

Not  allowed  on  delayed  j)ayment  because  of  written  waiver  of  claimant..       400 
Allowed  on  money  paid  liovernment  on  illegal  contract  from  date  of  pay- 
ment   ." 507 

International  reclamation  (sec  Concession;  Conti-act;  International  tribunals): 

Contract  provisions  against  making,  invalid 424 

International  tribunals  (wc  Commission;  Jurisdiction): 

Concession  providing  they  shall  not  be  resorted  to,  is  effective  before 

them - -  -  -  -       275 

Can   not  consider  contract  which  provides  for  submission  of  questions 

under  it  without  resort  to  local  tribunals  and  delay  or  denial  of  justice.       325 
Ordinarily  have  no  jurisdiction  over  private  contracts,  unless  there  has 

been  denial  of  justice 434 

Judges  of  their  own  jurisdiction 432 

Have  jurisdit'tion  over  claim  for  damages  for  breach  of  collateral  promise, 
notwithstanding  contract  providing  for  settlement  of  controversies  by 
local  courts 518 

J. 

Jarvis  case: 

Brief  on  behal  f  of  United  States 291 

Answer 296 

Replication 298 

Opinion  by  Bainbridge 301 

Decision 301 ,  307 

Jurisdiction  [see  Local  courts;  International  tribunals): 

Defined 256 

Of  Commission  over  unsettled  claims 290 

Discussed - 323 

Commission  has  none  to  decide  claims  against  municipalities 371 

Commission  has  none  to  compel  Government  to  acknowledge  claimant's 

performance  of  contract 388 

Commission  has  none  over  individual  claim  of  creditor  against  bankrupt.       409 
To  obtain,  of  international  tribunal  over  private  contract,  denial  of  justice 

ordinarily  necessary - 409 

Entertained,  notwithstanding  provision  of  contract  requiring  disputes  to 

be  submitted  to  local  courts,  as  it  would  work  inequitably 432 

Commission  judge  of  its  own _ 432 

International  tribunals  have  jurisdiction  of  international  claims  although 

pending  in  local  courts 432 

International  tribunals  have,  over  claims  for  breach  of  collateral  promise, 

notwithstanding  contract  providing  for  settlement  of  controversies  in 

local  courts 518 

K. 
Kuhnhardt  &  Co.  case: 

Brief  on  behalf  of  United  States 188 

Answer - 192 

Replication 193 

Opinion  by  Bainbridge 195 

Opinion  by  Paul 202 

Aw'ard 205 

La  Guayra  Cable  Company  case.    ( See  Caracas  and  La  Guayra  Cable  Company. ) 

La  Guayra  Electric  Light  and  Power  Company  case: 

Oral  presentation 401 

Answer 402 

Replicaticm 403 

Opinion  by  Bainbridge 406 

Award  410 


INDEX.  559 

Lasry,  Isaac  J.,  case:  Page. 

Brief  on  behalf  of  United  States 133 

Answer - 134 

Opinion  by  Bainbridge -       135 

Award - 137 

Local  courts  (.fee  Jurisdiction): 

Have  exclusive  jurisdiction  over  contracts  providing  for  reference  to  them 
and  excluding  international  claims,  unless  denial  of  justice 325 

Foreigner  subject  to  jurisdiction  of  local  courts  for  crimes ._. 376 

Have  jurisdiction  to  punish  transgressors,  citizen  or  alien,  if  laws  and 
penalties  accord  with  civilized  codes -.----. .-       "^^^ 

Provision  of  contract  requiring  disputes  to  be  referred  to,  being  inequi- 
table under  the  circumstances,  jurisdiction  is  entertained 424 

International  tribunals  have  jurisdiction  of  claims  of  foreigners  although 

pending  in 432 

International  tribunals  have  jurisdiction  of  claim  for  breach  of  collateral 
promise,  notwithstanding  contract  providing  that  questions  under  it 
shall  be  settled  by 518 

M. 

Manoa  Company  case.     {See  Turnbull  case. ) 

Maritime  law  {see  Vessel) : 

Lien  for  necessary  repairs  to  vessel  follows  it  everywhere 531 

Acceptance  of  assignment  in  payment  of  debt  for  necessary  repairs  releases 
lien 531 

Mark  Gray  (schooner)  case.     (See  Emery,  J.  S.,  &  Co.) 

Matchett  case: 

Brief  on  behalf  of  United  States 339 

Answer - 3"^2 

Decision 343 

Mercado  case: 

Brief  on  behalf  of  United  States o4:i 

Answer-. 3"**^ 

Claim  withdrawn 347 

Mercado  case  ( No.  2) : 

Oral  presentation 51.0 

Answer - 521 

Withdrawn 522 

Monnot  case  ( No.  1 ) : 

Brief  on  behalf  of  United  States. 3^6 

Answer - ^i^ 

Opinion  by  Bainbridge 3' •* 

Award 380 

Monnot  ca.se  (No.  2): 

Presentation 545 

Answer - 54b 

Decision '"'■^' 

Monopoly: 

Right  of  Government  to  grant  towing,  recognized 1-^5 

Grant  of  exclusive  right  to  use,  for  foreign  commerce,  waterways  reserved 
for  coastwise  trade,  does  not  prevent  opening  same  to  commerce  gen- 
erally         -"^"^ 

Morris,  Robert  C. : 

American  agent 5 

Address  of "^' 

Briefs  and  replications  by.     {See  Entry  of  any  case. ) 

Municipalities: 

Commission  has  no  jurisdiction  to  decide  (ilaims  agamst 3/1 

Claim  for  breach  of  contract  of,  disallowed  as  against  government 410 

Municipal  laws.     {Sec  Local  Courts. ) 
Mundy  case: 

Oral  presentation 'p^ 

Answer ''''•; 

Replic-ation 510 

Decision 510 


500  INDEX 


O. 


OriiKHH)  Company  (Lhnited)  case.     {See  Tnnibull  case.) 

Orinoco  Steanisliip  Conipanv  case:  ^*&®- 

Brief  on  behalf  of  Tnitctl  States 205 

Answer 214 

Replication 224 

Opinion  by  Hainbridge 256 

Opinion  by  ( Jrisanti 258 

Opinion  by  umpire 266 

Award 280 

P. 

Passport,  damages  allowed  for  delay  consequent  upon  unlawful  refusal  to 

furnish 1^7 

Paez  case: 

Brief  on  l)ehalf  of  United  States ■-  59 

Opinion  by  Paul 60 

Aw'ard - 61 

Pares  case: 

Oral  presentation 448 

Answer 448 

Opinion  by  Commission 449 

Decision 450 

Paul,  Jose  de  J.: 

Venezuelan  Commissioner ---  5 

Opinions — 

American  Electric  and  Manufacturing  Company  case 131 

Bance  case 383 

Boulton,  Bliss  &  Dallett  case 150 

Coro  and  La  Vela  Railway  Improvement  Company  case 69 

Gage  case - 336 

Genevese  case -  - 397 

Heny  case 92 

Kuhnhardt  case -  -  - 202 

Paez  case - 60 

Rudloff  case 427 

Scandella  case 350 

Thomson-Houston  International  Electric  Company  case 370 

Torrey  case 330 

Turini  case - 174, 187 

Underbill  case - - 159 

Woodruff  case 314 

Upton  case,  No.  2 447 

Phelps  case: 

Oral  presentation 352 

Answer ^^2 

Opinion  by  Commission 353 

Award '^^4 

Ports.     ( ,S'ee  Closure  of  ports. ) 

Postal  Treaty  case 665 

Prescription: 

Claim  duly  presented  not  barred  by  delay  in  settlement 289 

Bars  right  unasserted  for  forty-three  years 326 

Municipal  statutes  of  limitation  can  not  bar  an  international  claim 326 

Proceedings,  summary  of.     {See  Claims,  schedule  of,  and  summary  of  pro- 
ceedings.) 
Property: 

Destruction  of,  for  public  benefit,  damages  awarded 57 

Responsibility  of  Government  for,  taken  for  use  of  armies -  57,  92 

Neutral,  destroyed  by  soldiers  with  authorization  or  in  presence  of  negli- 
gent commanders,  given  rights  to  claim 201 

Taking  of,  for  public  use  involves  obligation  to  compensate  owner 389 

Of  bankrupt  does  not  belong  in  divisible  shares  to  creditors 383 

Arbitrarily  destroyed  will  be  allowed  for 439 


INDEX. 


561 


Property — Continued.  ^*^'^' 

Taking  awav  or  destruction  of,  constitutes  basis  of  a  claim 389 

Assignment  of ,  in  payment  of  del^t  amounts  to  sale  of,  and  its  acc^)tance 

releases  debtor 531 

Protocol 33-36 

Commission  to  consist  of  two  members  ( A rt.  I ) 33 

All  unsettled  claims  shall  be  presented  to  Commission  (Art.  I) 33 

Umpire  to  be  named  by  the  Queen  of  the  Netherlands  ( Art.  I ) 34 

Commissioners  and  umpire  to  be  appointed  before  May  1,  1903  (Art.  I)..  34 

Commission  shall  meet  at  Caracas,  June  1,  1903  (Art.  I) 34 

Umpire  shall  preside  over  deliberations  (Art.  I) - 34 

In  case  of  disagreement,  umpire  shall  decide  (Arts.  I  and  II ) 34,  35 

Decisions  shall  be  based  on  absolute,  equity,  without  regard  to  technicali- 
ties or  local  legislation  ( Art.  I) 3-4 

Decisions  shall  be  final  ( Art.  I) 34 

Decisions  shall  be  in  writing  (Art.  I) - - -  -  34 

All  awards  payable  in  United  States  gold  (Art.  I) 34 

Claims  shall  be  decided  only  upon  evidence  furnished  by  respective  Gov- 
ernments (Art.  II) "- :  -  -  34-35 

All  claims  shall  be  presented  within  thirty  days  from  date  of  first  meetmg 

of  Commission  (Art.  II) ^ 

All  claims  shall  be  decided  within  six  months  from  date  of  presentation 

(Art.  II) - : 35 

Commissioners  shall  keep  accurate  record  of  proceedings  (Art.  Ill) 35 

Secretaries  shall  be  appointed  ( Art.  Ill ) 35 

Questions  of  procedure  left  to  Commission  (Art.  Ill ) 35 

Reasonable    compensation    to  commissioners    and    umpire,   and    other 
expenses,  to  be  paid  in  equal  parts  by  contracting  Governments  (Art. 

IV) 36 

Customs  revenues  to  be  ^et  aside  to  pay  expenses  (Art.  V) 36 

Awards  to  be  promptly  paid  (Art.  VI) 36 

R. 

Raymond  case: 

Oral  presentation 522 

Answer - '^^'^ 

Replication - - ''24 

Opinion  by  Bainbridge 527 

Opinion  by  Grisanti ^ -  - 532 

Decision - 535 

Recordation  of  instruments: 

Want  of,  can  not  be  invoked  by  wrongdoer 85 

Not  required  as  against  wrongdoer 86 

Revolution  (.see  Bonds;  Equity;  Foreigners;  Government): 

Acts  of  successful,  are  those  of  de  facto  government - §1'  I^ 

Responsibility  of  government  for  acts  of  successful 57,  79 

Payment  of  bonds  for  services  rendered  in  support  of  unsuccessful,  can 

not  be  enforced  against  government _. 306 

Foreigner  assumes  risk  of,  in  country  of  his  residence 539 

Roberts  (;ase: 

Brief  on  behalf  of  United  States 281 

Answer - 284 

Replication - 285 

Opinion  by  Bainbridge 286 

Award 290 

Rudloff  case: 

Oral  presentation 415 

Answer 416 

Replication - 41  / 

Opinion  ))y  Bainbridge 421,433 

Opinion  by  Paul 427 

Opinion  by  (Jrisanti 438 

Opinion  by  umpire 431 

Award _439 

Rules  of  Commission 3 /  —10 

Secretaries  shall  keep  docket  (I) 37 

S.  Doc;.  317,  58-2 36 


562  INDEX. 

Rules  of  Commission — Contimu'd.  Pa.ge. 

SiH-retaries  shall  koeep  duitlicate  records  of  proceedings  (I) 37 

Secretaries  shall  keep  record  of  the  pniceedinijs  in  English  and  Spanish 

(VII) - 38 

Secretaries  shall  keep  notice  liook  (Vll) 38 

Secretaries   shall   provide   iluplicate   books   of   printed   forms   to   record 

awards  an<l  decisions  (VII) 38 

Secri'taries  shall  be  custodians  of  papers,  documents,  etc.  ( VII) 38 

All  claims  shall  be  presented  within  thirty  days  from  June  1,  1903  (II)  ..  37 

Claims  deemed  tiled  on  presentation  t)f  written  documents  ( III ) 37 

United  States  shall  have  right  to  tile  brief  in  support  of  each  claim  (IV) .  37 

Venezuela  not  required  to  deny  allegations  in  any  case  (IV) 37 

Venezuela  shall  have  right  to  make  specific  answer  within  fifteen  days  (IV)  37 
Failure  to  lile  brief  within  time  allowed  shall  be  deemed  to  close  case  (IV)  37-38 

Petition  or  answer  may  be  amended  (V) 38 

No  evidence  shall  be  received  except  through  agents  of  respective  govern- 
ments (VI_) 38 

Certified  copies  of  papers  may  be  received  in  evidence  ( VIII ) 38 

Russell,  Hon.  W.  AV. ,  mentionetl 32 

S. 

Scandella  case: 

Brief  on  behalf  of  United  States 347 

Answer 349 

Opinion  by  Paul 350 

Decision 352 

Schedule  of  claims.     {See  Claims,  schedule  of  and  summary  of  proceedings.) 

Smith,  Leonard  B.,  case: 

Brief  on  behalf  of  United  States 109 

Answer 115 

Replication - 1^5 

Opinion  by  Bainbridge 117 

Award l-^l 

Spader  case: 

Brief  on  behalf  of  United  States 324 

Answer 324 

Opinion  by  Bainbridge 325 

Decision 325 

Stubbs  case: 

Brief  on  behalf  of  United  States 122 

Answer 123 

Decision -    -  -  -  - -  -  123 

Summary  of  proceedings.     {See  Claims,  schedule  of,  and  summary  of  proceed- 
ings.) 

T. 

Thomson-Hoaston  International  Electric  Company  case: 

Oral  presentation 369 

Answer 369 

Brief  in  replication 3 '0 

Opinion  by  Paul 370 

Decision 3/2 

Torrey  case: 

Brief  on  behalf  of  United  States 3_,7 


Answer. 


329 


Opinion  by  Paiil 330 

Award . . . ". 331 

Turini  case  (administratrix  and  heirs  of  Giovanni  Turini,  the  Gorham  Manu- 
facturing Compauv,  and  Joseph  Carabelli,  claimants): 

Brief  on  behalf  "of  United  States 168 

Answer 1^|; 

Replication |t^ 

Opinion  by  Bainljridge l^^ 

Opinion  by  Paul ':i* 

Opinion  bv  umpire j^l 

Award... ^ 1^* 


INDEX.  563 

Turini  case  (Margaret  Turini,  administratrix,  claimant):  Page. 

Brief  on  belialf  of  United  States 184 

Answer X85 

Opinion  by  Paul 187 

Award  188 

TurnbuU  case  (and  Manoa  case;  Orinoco  Company  (Limited)  case): 

Oral  presentation 451 

Answer .' ."  455 

Supplement  to  answer 459 

Opinion  by  Bainbridge 460 

Opinion  by  Grisanti 487 

Opinion  by  umpire 500 

Award  (Orinoco  Company) 1 508 

U. 

Underbill  case: 

Brief  on  behalf  of  United  States 153 

Answer I57 

Replication ]  58 

Opinion  by  Bainbridge 159 

Opinion  by  Paul 159 

Opinion  by  umpire 162, 164 

Award 167 

Upton  case: 

Oral  presentation 384 

Answer 385 

Replication 386 

Opinion  by  Bainbridge 387 

Award 390 

Upton  case,  No.  2: 

Oral  presentation 444 

Answer 444 

Replication 445 

Opinion  by  Paul 447 

Decision 448 

T. 

Vessel  {see  Maritime  law): 

Custom-house  registry  prima  facie  e\-idence  only  as  to  ownership 119 

Acceptance  of  assignment  in  payment  of  debt  for  necessary  repairs  releases 

lien ; .' ■. 531 

Lien  for  necessary  repairs  to,  f ollovys  it  eyery where 531 

Volkmar  case: 

Oral  presentation 535 

AnsW'er 536 

Replication 537 

Opinion  by  Bainbridge 538 

Award 540 

W. 

War  (se€  Army;  Blockade;  Bombardment;  Claim;  Damages;  Government): 

No  damages  allowed  for  business  injury  as  result  of 100 

Damages  for  boml)ardiiieiit  as  legitinuite  act  of,  disallowed 132 

Claimant  assumes  risk  of,  in  country  of  his  rwidence 389 

No  claim  exists  for  destruction  of  neutral  property  in  war 542 

Government  not  responsible  for  results  of  legitimate  acts  of 542 

Government  not  liable  for  damages  incident  to  ordinary  operations  of 542 

Woodruff  case: 

Brief  on  behalf  of  the  United  States 307 

Answer 311 

Opinion  by  Bainbridge 313 

Opinion  by  Paul 317 

Opinion  by  umpire 321 

Decision 324 

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